Common use of Exchange Adjustment Clause in Contracts

Exchange Adjustment. (i) The consideration hereunder shall consist of 756,199 validly issued, fully paid and nonassessable, ordinary shares of Parent (“Parent Shares”), subject to adjustment as set forth in this Section 2.01. Each issued and outstanding share of Company Common Stock (other than shares to be canceled in accordance with Section 2.01(b)) and other than Dissenting Shares (as defined in Section 2.01(d)), each issued and outstanding share of the Series A Preferred Stock, US$0.001 par value (the “Series A Preferred Stock”), of the Series B Preferred Stock, US$0.001 par value (the “Series B Preferred Stock”) and of the Series C Preferred Stock, US$0.001 par value (the “Series C Preferred Stock,” and together with the Series A Preferred Stock and the Series B Preferred Stock, collectively, the “Preferred Stock”) and each issued and outstanding share of the Series D Preferred Stock, US$0.001 par value (the “Series D Preferred Stock”) and of the Series E Preferred Stock, US$0.001 par value (the “Series E Preferred Stock,” and together with the Series D Preferred Stock, collectively, the “Senior Preferred Stock”) shall be converted into Parent Shares in accordance with Article IV, Section D.3. of the Fifth Amended and Restated Certificate of Incorporation of the Company, as in effect on the date hereof and a copy of which has been made available to Parent or its counsel, subject to adjustment in accordance with this Section 2.01(c). The Parent Shares so issued shall be registered and freely tradeable on the Australian Securities Exchange without restriction no later than 45 days following the issuance thereof. (i) If, prior to the Effective Time, Parent shall pay a dividend in (including any dividend or distribution of securities convertible into capital stock), subdivide, combine into a smaller number of shares or issue by reclassification of its shares, any Parent Shares, all references in this Agreement to specified numbers of shares of Parent Shares affected thereby, and all calculations provided for that are based upon numbers of Parent Shares (or trading prices therefor) affected thereby, shall be equitably adjusted to the extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior such adjustment. All such shares of Company Common Stock, Preferred Stock and Senior Preferred Stock, other than Dissenting Shares (as defined in Section 2.01(d)), shall no longer be outstanding and be automatically canceled and retired and shall cease to exist, and each holder of a certificate representing shares of Company Common Stock, Preferred Stock or Senior Preferred Stock, as the case may be, shall cease to have any rights with respect thereto, except the right of such holder to receive the applicable number of Parent Shares or cash, as the case may be, upon the surrender of such certificate in accordance with Section 2.02, without interest, and such holder’s right to receive cash or Parent Shares upon the achievement of the Milestones. (ii) The number of Parent Shares to be paid at the Closing Date (the “Parent Share Consideration”) is based on the assumption that the Net Liabilities were not more than US$1,000,000 on the business day prior to the Closing Date. The Company will cause (A) the accounting records of the Company to be closed as of the close of business on the business day preceding the Closing Date and (B) a balance sheet to be prepared in accordance with GAAP (except that such balance sheet shall not contain the footnotes required by GAAP) as of such time (the “Closing Date Balance Sheet”). The Closing Date Balance Sheet shall reflect all events occurring through the close of business on the business day preceding the Closing Date, and will include the Net Liabilities as at such date. Parent shall have full access to accounting records, trial balances and reports from which the Net Liabilities computation was derived. (iii) If, as set forth in the Closing Date Balance Sheet, the Net Liabilities were more than US$1,000,000 on the business day prior to the Closing Date, the Parent Share Consideration shall be reduced by the amount of such deficiencies as calculated pursuant to this Section 2.01. If, as set forth in the Closing Date Balance Sheet, the Net Liabilities are less than US$1,0000,000, the Parent Share Consideration shall be increased by the amount of such excess cash and/or the amount of lesser debt as calculated pursuant to this Section 2.01, but in no event in excess of 957,464 Parent Shares. Any remaining difference where such Net Liabilities are less than US$1,000,000 will be paid in cash in U.S. Dollars by the Parent. In making any reduction or increase in the Parent Shares, the value of each Parent Share shall be converted into U.S. Dollars using the Exchange Rate for the purposes of such calculation. (iv) If, within 45 calendar days after the Company’s delivery of the computation of the Net Liabilities to Parent pursuant to this Section, Parent determines in good faith that the amount of the Net Liabilities so computed is inaccurate, Parent shall give notice to the Representative within such 45 calendar-day period, (A) setting forth Parent’s determination of the amount of the Net Liabilities and (B) specifying in reasonable detail Parent’s basis for its disagreement with the Company’s computation. The failure by Parent so to express its disagreement within such 45 calendar-day period shall constitute acceptance of the amount of the Net Liabilities shown on the Closing Date Balance Sheet for all purposes of this Section. A representative of Parent and the Representative shall attempt in good faith to resolve any such disputes. If the Representative and Parent are unable to resolve any disagreement with respect to these computations within 30 calendar days after receipt by the Representative of notice of such disagreement, the items in dispute shall be referred for determination to a “Big 4” independent accounting firm agreed upon by the Representative and Parent (the “Accountants”) within such 30 calendar-day period. The Accountants shall make a determination as to each of the items in dispute, which determination shall be (W) in writing, (X) furnished to the Representative and Parent as promptly as practicable after the items in dispute have been referred to the Accountants, (Y) made in accordance with GAAP and (Z) conclusive and binding on the Parent. The fees and expenses of the Accountants shall be paid by Parent; provided, however, that Parent shall be reimbursed for one-half of such fees and expenses out of the Parent Share Consideration. As soon as reasonably practicable after the final resolution of the computation of the Net Liabilities in accordance with this Section 2.01(c), the Parent shall cause the Exchange Agent to issue to holders of surrendered Certificates, in accordance with Section 2.02, holding statements reflecting the shares registered on the books of the Parent representing that number of additional duly and validly authorized Parent Shares which such holders have the right to receive pursuant to the provisions of this Article II, if any, after adjustment to reflect the final computation of the Net Liabilities and any fees and expenses owing pursuant to this Section 2.01(c) and the Holdback Shares, and shall pay any amount of cash payable pursuant to Section 2.01(c)(iii). (v) By virtue of the approval of this Agreement by the Company’s stockholders, and without further action of any Company stockholder, each Company stockholder entitled to receive Parent Shares under this Agreement shall be deemed to have irrevocably constituted and appointed Sprout Capital IX, L.P. (and by execution and delivery of this Agreement it hereby accepts such appointment) as agent and attorney-in-fact for and on behalf of such stockholders, with full power of substitution, to act in the name, place and stead of each such stockholder with respect to this Section 2.01(c) in connection with the determination of the Net Liabilities and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative under this Article II, including the exercise of the power to: (i) give and receive notices and communications under this Article II; (ii) prepare and deliver to Parent the Closing Date Balance Sheet and computation of Net Liabilities and participate on behalf of the Company’s stockholders in the resolution of any dispute relating thereto, including to act as the representative of the Company’s stockholders to review and authorize all adjustments proposed hereunder and dispute or question the accuracy thereof and to compromise on their behalf with Parent; (iii) deliver or authorize the delivery of any consideration owing pursuant to this Agreement; and (iv) take all actions necessary or appropriate in the good faith judgment of the Representative for the accomplishment of the foregoing. The power of attorney granted in this Section 2.01(c) is coupled with an interest and is irrevocable, and shall survive the death or incapacity of any Company stockholder. The Parent shall be entitled to deal exclusively with the Representative on all such foregoing matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of the Company stockholders by the Representative regarding such matters, and on any other action taken or purported to be taken on behalf of any Company stockholder by the Representatives regarding such matters, as fully binding upon such Company stockholder. No bond shall be required of the Representative, and the Representative shall receive no compensation for services. Notices or communications to or from the Representative shall constitute notice to or from each of the Company’s stockholders. (vi) In performing the functions specified in this Agreement, the Representative shall not be liable to any Company Stockholder in the absence of gross negligence or willful misconduct on the part of the Representative. The Representative shall not be liable to Parent for any damages resulting from any claim because of such Representative’s position as the Representative. Each of the Company’s stockholders shall severally (based on each such stockholder’s pro rata share of the consideration owing pursuant to this Agreement), and not jointly, indemnify and hold harmless the Representative from and against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Representative.