Exchange Agreement债转股协议
THIS EXCHANGE AGREEMENT (this \(the \(sb), an individual (\of _________(PLACENAME) (\_________(PLACENAME) corporation (\ENAME)\_________(PLACENAME) are sometimes collectively referred to as \\
RECITALS
A. The parties intend that, subject to the terms and conditions of this Agreement, AAA will acquire 100% of the issued and outstanding share capital of CCC from the CCC Shareholder pursuant to the terms and conditions set forth herein in exchange for shares of AAA Common Stock.
B. Upon the effectiveness of the Exchange (as defined below), all the issued and outstanding shares of CCC will be transferred to AAA in exchange for shares of AAA Common Stock.
C. The representations and warranties of the CCC Shareholder herein are a material inducement to AAA to enter into this Agreement.
D. The parties acknowledge that the Exchange will not qualify as, and is not intended to qualify as, a reorganization under Section 368 of the U.S. Internal Revenue Code of 1986, as amended (the \ode\NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms will have the meanings set forth below:
1.1 \1.2 \
1.3 \reement\omprehensive Cross Certification Agreement, dated
_________,_________,_________(M/D/Y), between CCC Consulting (Pty) Ltd. and Entrust Technologies, Inc. 1.4 \tstanding CCC Stock for the Exchange
Shares contemplated by Section 2 below.
1.5 \mber\tained by dividing (i) the Exchange Shares (as defined below) by (ii) the
CCC Fully Diluted Number.
1.6 \
issued under this Agreement in exchange for all of the shares of CCC Stock that are issued and outstanding immediately prior to the Closing and is equal to the number of Transaction Shares minus the number of Restraint Shares.
1.7 \mber of shares of AAA Common Stock, as presently constituted, that will be
issued under this Agreement in exchange for the Non Competition Agreements described in Section 5.13, in the numbers and to the persons (the \Shares are contemplated, as of the date hereof, to equal approximately [1%] of the Transaction Shares. In the event that any of the Non Competition Agreements are not entered into and effective as of the Closing, or in the event that such Restrained Persons shall fail to satisfy the requirements set forth in Section 2.1.4 hereof, the Restraint Shares designated in Exhibit 9.9 with respect to each such Restrained Person will be issued instead to the CCC Shareholder as Exchange Shares.
1.8 \
Agreement, the Registration Rights Agreement, the Share Transfer Form CM 42, being the form prescribed by _________(PLACENAME) law (the \document (other than this Agreement) to which the CCC Shareholder is to enter into as a party thereto, or is to otherwise execute and deliver pursuant to or in connection with this Agreement.
1.9 \ocument (other than this Agreement)
which CCC is to enter into as a party thereto, or is to otherwise execute and deliver, pursuant to or in connection with this Agreement.
1.10 \1.11 \ted Number\mber that is equal to the sum of the total number of shares that CCC
_________(PLACENAME) Stock that are issued and outstanding immediately prior to the Closing.
1.12 \
are issued and outstanding immediately prior to the Closing.
1.13 \ENAME),
ZAR 1,00 par value per share, comprising the entire issued capital of CCC _________(PLACENAME), as constituted immediately prior to the Closing.
1.14 \
Stock.
1.15 \ENAME),
$1.00 par value per share, comprising the entire issued capital of CCC _________(PLACENAME), as constituted immediately prior to the Closing.
1.16 \mber of shares of AAA Common Stock, as presently constituted that will be
issued under this Agreement to the CCC Shareholder, the Restrained Persons, and the Escrow Agent, and is equal to the quotient obtained by dividing (i) U.S. $ _________ by (ii) the AAA Average Price Per Share.
1.17 \ocument (other than this
Agreement) which AAA is to enter into as a party thereto, or is to otherwise execute and deliver, pursuant to or in connection with this Agreement.
1.18 \
dollars) as quoted on the Nasdaq National Market (or such other exchange or quotation system on which AAA Common Stock is then traded or quoted) and reported in The Wall Street Journal for the trading day prior to the
Agreement Date, or, the average of the closing prices per share of AAA Common Stock (in U.S. dollars) as quoted on the Nasdaq National Market (or such other exchange or quotation system on which AAA Common Stock is then traded or quoted) and reported in The Wall Street Journal for the ten (10) trading days ending on, and inclusive of, the Closing Date;
1.19 \ommon Stock, $0.001 par value per share, of AAA. Other capitalized terms
defined elsewhere in this Agreement and not defined in this Section 1 shall have the meanings assigned to such terms in this Agreement.
2. THE EXCHANGE
Subject to the terms and conditions of this Agreement, at the Closing:
(a) the CCC Shareholder shall irrevocably assign and transfer to AAA all of the shares of the CCC Stock; (b) AAA shall issue to the CCC Shareholder the Exchange Shares with 99.5% of such number of shares being
issued in exchange for the CCC _________(PLACENAME) stock and 0.5% in exchange for the CCC _________(PLACENAME) Stock;
(c) AAA shall pay the CCC Shareholder U.S. $ _________ in cash for the CCC _________(PLACENAME) stock
and U.S.$ _________ for the CCC _________(PLACENAME) stock; and
(d) subject to the requirements of Section 2.1.4 hereof, AAA shall issue to the Restrained Persons the Restraint
Shares.
2.1 Exchange of Shares.
2.1.1 Exchange of CCC Stock. Subject to surrender and delivery to AAA by the CCC Shareholder of the
applicable CCC Certificates at the Closing and the accompanying Share Transfer Form and Form W 8, the CCC Shareholder shall receive a stock certificate for its Exchange Shares (less the Escrow Shares, as defined below) at the Closing.
2.1.2 Fractional Shares. No fractional shares of AAA Common Stock shall be issued in connection with the
Exchange. Instead, AAA shall issue AAA Common Stock in an amount rounded up to the next whole share.
2.1.3 Registration Rights. Effective upon the Closing, the CCC Shareholder and the Restrained Persons shall be
granted registration rights under the Securities Act of 1933, as amended (the \and subject to the conditions and limitations of the Registration Rights Agreement attached hereto as Exhibit 2.1.3 (the \hts Agreement\
2.1.4 Restraint Shares. The issuance of the Restraint Shares shall be subject to (i) the availability (as determined in
the reasonable discretion of AAA and its counsel) of an exemption under Section 4(2) of the 1933 Act and Rule 506 promulgated thereunder, (ii) the completion by the Restrained Persons of Investment Representation Letters (as defined in Section 2.5 below), and (iii) the performance by the Restrained Persons of such actions as AAA may reasonably request (including, but not limited to, the engagement by the Restrained Persons, at their own expense, of a suitable purchaser representative, as defined in Rule 502 promulgated under the 1933 Act). In the event that AAA determines, in its reasonable discretion, that the conditions set forth herein are not satisfied, AAA shall not issue the Restraint
Shares, but shall instead, adjust the number of the Exchange Shares and shall issue such additional Exchange Shares to the CCC Shareholder pursuant to the terms hereof.
2.2 Adjustments for Capital Changes. Notwithstanding the provisions of Section 2.1, if at any time after the Agreement
Date and prior to the Closing, AAA or CCC recapitalizes, either through a subdivision (or stock split) of any of its issued and outstanding shares into a greater number of shares, or a combination (or reverse stock split) of any of its issued and outstanding shares into a lesser number of shares, or reorganizes, reclassifies or otherwise changes its issued and outstanding shares into the same or a different number of shares of other classes (other than through a subdivision or combination of shares provided for in the previous clause), or declares a dividend on its issued and outstanding shares payable in shares or securities convertible into shares of AAA Common Stock (a \Change\in the Exchange shall be appropriately, equitably and proportionately adjusted (as agreed to in writing by AAA and CCC if the adjustment for such Capital Change involves something other than a mathematical adjustment) so as to maintain the proportionate interests of the Shareholder of CCC and the Shareholder of AAA contemplated hereby so as to maintain the proportional interests of the holders of CCC Stock contemplated by this Agreement. The provisions of this Section shall not apply to any transaction not permitted to be undertaken by CCC under the provisions of this Agreement. In the event that a Capital Change affecting AAA Common Stock occurs prior to the Closing, then all prices per share and numbers of shares used to compute the Exchange Number shall be deemed to have been equitably adjusted to reflect such Capital Change as necessary to effect the purposes and intent of this Section.
2.3 Escrow Agreement. At the Closing, AAA shall withhold ten percent (10%) of the Transaction Shares (the \
Shares\hase Manhattan Bank and Trust Company, N.A. or a similar institution as agreed to in writing by the parties, as escrow agent (the \Agent\y the Escrow Agent as security for the CCC Shareholder's indemnification obligations under Section 11 and pursuant to the provisions of an Escrow Agreement (the \represented by certificates issued in the name of the CCC Shareholder and will be held by the Escrow Agent during that time period (the \\y consents to, approve and agree to be personally bound by: (i) the indemnification provisions of Section 11 of this Agreement; (ii) all of the terms, conditions and limitations in the Escrow Agreement; and (iii) the appointment of BBB(sb) as the representative of the CCC Shareholder (the \epresentative\nder the Escrow Agreement and as the attorney in fact and agent for and on behalf of the CCC Shareholder as provided in the Escrow Agreement, and the taking by the Representative of any and all actions and the making of any and all decisions required or permitted to be taken by the Representative under the Escrow Agreement (including, without limitation, the exercise by the Representative of the power to: (i) authorize delivery to AAA of Escrow Shares in satisfaction of claims by AAA or any other Indemnified Person (as defined herein); (ii) agree to, negotiate and enter into settlements and compromises of such claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; (iii) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Section 11; and (iv) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing). The Representative will have unlimited authority and power to act on behalf of the CCC Shareholder with respect to the Escrow Agreement and the disposition, settlement or other handling of all claims governed by the Escrow Agreement, and all rights or obligations arising under the Escrow Agreement. The CCC Shareholder will be bound by all actions taken by the Representative in connection with the Escrow Agreement, and AAA will be entitled to rely on any action or decision of the Representative. In performing the
functions specified in this Agreement and the Escrow Agreement, the Representative will not be liable to the CCC Shareholder in the absence of gross negligence or willful misconduct on the part of the Representative. Any out of pocket costs and expenses reasonably incurred by the Representative in connection with actions taken pursuant to the terms of the Escrow Agreement will be paid by the CCC Shareholder.
2.4 Further Assurances. If, at any time after the Closing, the parties hereto consider or are advised that any further
instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Exchange or to carry out the purposes of this Agreement at or after the Closing, then AAA and the CCC Shareholder shall execute and deliver all such proper deeds, assignments, instruments and assurances and do all other things necessary or desirable to consummate the Exchange and to carry out the purposes and intent of this.
2.5 Securities Laws Issues. AAA shall issue the Exchange Shares and the AAA Options pursuant to an exemption from
registration under Section 4(2) and/or Regulation D promulgated under the 1933 Act. Concurrently with execution of this Agreement, the CCC Shareholder will execute and deliver to AAA an Investment Representation Letter in the form of Exhibit
2.5 hereto (the \
2.6 Example. Exhibit 2.6 hereto sets forth an illustration of the operation of the provisions of Section 2 of this Agreement
regarding the exchange of shares of CCC Stock in the Exchange, and the issuance of the Restraint Shares and the Escrow Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE CCC SHAREHOLDER
The CCC Shareholder hereby represents and warrants to AAA that each of the following representations and statements in this Section 3 are true and correct.
3.1 Organization and Good Standing. CCC is a company duly organized, validly existing and in good standing under the
laws of _________(PLACENAME). CCC has the corporate power and authority to own, operate and lease its properties and to carry on its business as now conducted and as proposed to be conducted, and is duly qualified to transact business as a foreign corporation in each jurisdiction in which its failure to be so qualified would have a Material Adverse Effect. As used in this Agreement, the term \verse Effect\to CCC (either alone or collectively with all CCC Subsidiaries, as defined below), means any event, change or effect that is (or will with the passage of time be) materially adverse to CCC's condition (financial or otherwise), properties, assets, liabilities, business, operations, or results of operations, it being understood that none of the following shall be deemed by itself or by themselves, either alone or in combination, to constitute a Material Adverse Effect: (a) any effect arising out of or resulting from actions contemplated by the parties in connection with the announcement of this Agreement and the transactions contemplated hereby, or (b) the termination of the Entrust Agreement by Entrust. 3.2 Power, Authorization and Validity.
3.2.1 The CCC Shareholder has the right, power, legal capacity and authority to enter into, execute, deliver and
perform such CCC Shareholder's obligations under this Agreement and all Shareholder Ancillary Agreements and has the requisite power and authority to consummate the Exchange, in each case, subject only to the regulatory approval set forth in Section 3.2.2.
3.2.2 No filing, authorization, consent, approval or order, governmental or otherwise, required by
_________(PLACENAME) Law is necessary or required to be made or obtained by the CCC
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