Purchase Consideration. Pursuant to the terms of the SPA, the purchase consideration for the Sale Shares payable by the Company (the “Purchase Consideration”) shall be deemed to be satisfied in full by the allotment and issuance of new Shares (credited as fully paid) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor may, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the following: (a) The Valuation of the Target (as defined below);; (i) On the basis that the Valuation of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%. (ii) Where the Valuation of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million (c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the other. (d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the Consideration Shares.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Purchase Consideration. Pursuant Buyer agrees to the terms of the SPA, the purchase pay Seller in consideration for the Sale Shares payable by acquisition of the Company Subject Property (the “Purchase Consideration”) shall be deemed an aggregate of 2,824 restricted shares of its to be satisfied in full by the allotment and issuance of new Shares (credited as fully paid) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor Series B Convertible Preferred Stock (the “Issue PriceSeries B Convertible Preferred Stock”) ), which shall have such rights as set forth on the designation attached as Exhibit “E” hereto, including no voting rights, no liquidation rights and no redemption rights, but shall have conversion rights. The conversion rights shall provide Seller the right to satisfy convert each Series B Convertible Preferred Stock share into 1,000 shares of the Purchase Consideration (fractional entitlements disregarded) Buyer’s common stock, from time to time at the option of Seller, provided that no conversion will be allowed at any time that the number of shares to be issued to the Seller, together with any other shares of common stock beneficially owned by the Seller, would exceed 9.99% of the Buyer’s then outstanding common stock. The Parties agree that the Series B Convertible Preferred Stock shall be valued at an aggregate of $6.354 million dollars (the “Consideration Purchase Price”).
a. In connection with the issuance of the Series B Convertible Preferred Stock of Buyer to Seller as provided above (such shares of Series B Convertible Preferred Stock, collectively with the shares of the Buyer’s common stock issuable upon conversion thereof, defined herein as the “Shares”). For the avoidance of doubt, the Vendor maySeller hereby represents, confirms, warrants and acknowledges the following to Buyer, which representations, warranties, confirmations and acknowledgements shall be automatically re-confirmed by Seller on the Closing Date:
i) Seller recognizes that the Shares have not been registered under the Securities Act of 1933, as amended (the “Act” or the “1933 Act”), nor under the securities laws of any state and, therefore, cannot be resold unless the resale of the Shares is registered under the 1933 Act or unless an exemption from registration is available. Seller may not sell the Shares without registering them under the 1933 Act and any applicable state securities laws unless exemptions from such registration requirements are available with respect to any such sale. The Buyer is under no obligation to register such Shares under the 1933 Act or under any state “Blue Sky” laws prior to or subsequent to their issuance;
ii) Seller acknowledges that it is an “accredited investor” as such term is defined under Rule 501(a) of Regulation D of the Act;
iii) Seller acknowledges that it has, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced making Seller’s investment decision in connection with the Proposed Acquisition valuing Shares received, had an opportunity to review (A) the Buyer’s Annual Report on Form 10-K for the year ended March 31, 2011; and (B) the Buyer’s quarterly reports on Form 10-Q for the quarters ended June 30, 2011 and September 30, 2011, each as filed on the SEC’s ▇▇▇▇▇ website, including the audited and unaudited financial statements, description of business, risk factors, results of operations, certain transactions and related business disclosures described therein; has read, reviewed, and relied solely on the documents described in (A) and (B) above (collectively referred to as the “Disclosure Documents”), and an independent investigation made by Seller and Seller’s representatives, if any; (C) has, prior to the date of this Agreement, been given an opportunity to review material contracts and documents of the Target by Buyer and has had an independent business valuer or such other person (acceptable opportunity to ask questions of and receive answers from the financial adviser Buyer’s officers and directors and has no pending questions as of the Companydate of this Agreement; and (D) to be appointed by the Company pursuant to Rule 1015(2) is not relying on any oral representation of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at Buyer or any other person, nor any written representation or assurance from the Purchase Consideration, Buyer other than those contained in the Company and the Vendor agree to take into account the following:
(a) The Valuation Disclosure Documents or incorporated therein; in connection with such Seller’s acceptance of the Target (Shares and investment decision in connection therewith. The Seller acknowledges that due to Seller’s receipt of and review of the information described above, Seller received similar information as defined below);would be included in a Registration Statement filed under the Act;
(iiv) On Seller has such knowledge and experience in financial and business matters such that Seller is capable of evaluating the basis that the Valuation merits and risks of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with an investment in the Shares held by or for and of making an informed investment decision, and does not require a representative in evaluating the existing Shareholders merits and risks of an investment in the Company Shares;
v) Seller recognizes that an investment in the Buyer is a speculative venture and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%.
(ii) Where the Valuation of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number amount of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the other.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than tendered in connection with the Proposed Acquisition) with Shares is placed at the mutual agreement risk of the Vendor business and may be completely lost. The ownership of the Shares as an investment involves special risks;
vi) Seller realizes that the Shares cannot readily be sold as they will be restricted securities and therefore the Shares must not be accepted unless Seller has liquid assets sufficient to insure that Seller can provide for current needs and possible personal contingencies;
vii) Seller confirms and represents that it is able (i) to bear the economic risk of the Shares, (ii) to hold the Shares for an indefinite period of time, and (iii) to afford a complete loss of the Shares. Seller also represents that it has (i) adequate means of providing for its current needs and possible personal contingencies, and (ii) has no need for liquidity in the Shares;
viii) All information which Seller has provided to the Buyer concerning Seller's financial position and knowledge of financial and business matters is correct and complete as of the date hereof;
ix) Seller has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax and financial advisors, the suitability of an investment in the Shares for its particular tax and financial situation and its advisers, if such advisors were deemed necessary, have determined that the Shares are a suitable investment for it;
x) Seller has not become aware of and has not been offered the Shares by any form of general solicitation or advertising, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to the Seller's knowledge, those individuals that have attended have been invited by any such or similar means of general solicitation or advertising;
xi) Seller understands that the Shares are being offered to it in reliance on specific exemptions from or non-application of the registration requirements of federal and state securities laws and that the Buyer is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of Seller set forth herein in order to determine the applicability of such exemptions and the Companysuitability of Seller to acquire the Shares. All information which Seller has provided to the Buyer concerning the undersigned's financial position and knowledge of financial and business matters is correct and complete as of the date hereof, and if there should be any material change in such information prior to acceptance of this Agreement by the Vendor Buyer, Seller will immediately provide the Buyer with such information;
xii) The Buyer is under no obligation to register or seek an exemption under any federal and/or state securities acts for any sale or transfer of the Shares by Seller, and Seller is solely responsible for determining the status, in its hands, of the Shares acquired in connection herewith and the Company (both acting reasonablyavailability, if required, of exemptions from registration for purposes of sale or transfer of the Shares;
xiii) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment No federal or state agency has made any finding or determination as to the Purchase Consideration and fairness of the number Shares for investment or any recommendation or endorsement of Consideration Shares to be allotted and issued to the Vendor (or to its order)Shares. The Consideration Shares shall have not been registered under the 1933 Act or the securities laws of any State and are being offered and sold in reliance on exemptions from the registration requirements of the 1933 Act and such state laws;
xiv) The Seller is acquiring the Shares for its own account for long-term investment and not with a view toward resale, fractionalization or division, or distribution thereof, and it does not presently have any reason to anticipate any change in its circumstances, financial or otherwise, or particular occasion or event which would necessitate or require its sale or distribution of the Shares. No one other than the Seller has any beneficial interest in said securities. The Seller is receiving the Shares for its account for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof; and
xv) Seller understands and agrees that a legend has been or will be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to placed on any certificate(s) or other document(s) evidencing the Shares in issue thensubstantially the following form: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, except that they will not rank for any dividendAS AMENDED OR ANY STATE SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, rightTRANSFERRED, allotment or other distributionsPLEDGED OR HYPOTHECATED UNLESS (I) THEY SHALL HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, the record date for which falls on or before the date of issue AS AMENDED AND ANY APPLICABLE STATE SECURITIES ACT, OR (II) THE CORPORATION SHALL HAVE BEEN FURNISHED WITH AN OPINION OF COUNSEL, SATISFACTORY TO COUNSEL FOR THE CORPORATION, THAT REGISTRATION IS NOT REQUIRED UNDER ANY SUCH ACTS.”
b. The issuance of the Consideration Series B Convertible Preferred Stock and the shares of the Buyer’s common stock issuable upon conversion thereof (the “Conversion Shares”) shall in all cases be subject to the approval of this Agreement and the transactions contemplated herein by the NYSE Amex and the listing of such Conversion Shares on the NYSE Amex.
Appears in 1 contract
Purchase Consideration. Pursuant (a) Subject to the terms and conditions of this Agreement, the total consideration payable for the Shares consists of the SPA, the purchase Transaction Consideration. The Transaction consideration for the Sale Shares payable by the Company (the “Purchase Consideration”) shall be deemed paid as follows:
(i) At the Closing the NCTI Signing Shares and the Cinema Consideration will be shall be issued to each Seller in the amount set forth below opposite such Seller's name: Seller NCTI Signing Shares Cinema Consideration ▇▇▇▇ ▇▇▇▇▇▇ 2,546,816 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 223,467 ▇▇▇▇▇▇ ▇▇▇▇▇ 567,536 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,546,816 ▇▇▇▇▇ ▇▇▇▇▇▇ 1,209,560 Total: 7,094,195
(ii) Future payouts will be satisfied in full by the allotment and issuance of new Shares (credited as fully paid) by the Company made to the Vendor (and/or its designated nominees), such new Sellers in accordance with the percentages set forth next to their respective names in Section 2.1 as follows:
1. NCTI First Payment Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor may, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined due and issuable on January 31, 2002 and NCTI Second Payment Shares shall be due and issuable on July 31, 2002.
(b) The NCTI Signing Shares shall be registered by mutual agreement in writing between the Company Buyer for resale by Sellers pursuant to a filed and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer declared effective registration statement on Form S-1 or such other person (acceptable form as NCTI may be qualified to use. On the second Trading Day, prior to NCTI submitting a written request to the financial adviser Securities and Exchange Commission (the "SEC") that such registration statement be declared effective, if the product of the Company) to be appointed Trailing Market Price on such Trading Day multiplied by the Company total number of NCTI Signing Shares is less than $2,395,000, then NCTI shall issue to Sellers in accordance with the respective percentages appearing next to their names in Section 2.1, a sufficient number of shares of NCTI Common Stock (the "Fill-Up Shares") such that the total number of shares of NCTI Common Stock then held by Sellers pursuant to Rule 1015(2this Agreement (assuming Sellers have not transferred or sold any NCTI Signing Shares) multiplied by the Trailing Market Price on such day shall equal $2,395,000, and NCTI shall amend such registration statement prior to it being declared effective to include the Fill-Up Shares for resale by the Sellers pursuant to such registration statement.
(c) On signing of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Considerationthis Agreement Sellers shall cause White & Case LLP, as escrow agent pursuant to that Escrow Agreement dated May 18, 2000 among NCTI, the Company and the Vendor agree escrow agent, to take into account the following:
(a) The Valuation release from escrow and surrender to NCTI _______ shares of the Target (NCTI Common Stock represented by NCTI Stock Certificate No. ________, free and clear of all Encumbrances, which NCTI may cancel as defined below);;
(i) On the basis issued and outstanding notwithstanding any prior claims or rights that the Valuation of the Target is determined to may be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued to the Vendor (asserted by any person or to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%.
(ii) Where the Valuation of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute entity in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the otherthereof.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the Consideration Shares.
Appears in 1 contract
Purchase Consideration. Pursuant In consideration of the purchase of the Assets and each Seller's and each Stockholder's covenants and agreements set forth in this Agreement, Buyer agrees (a) to pay to Sellers an aggregate amount of cash equal to the terms Cash Consideration, of which (i) an amount equal to the Cash Consideration less the Cash Holdback shall be delivered on the Closing Date and (ii) the Cash Holdback shall become an element of the SPAHoldback Amount and, upon the purchase consideration terms and subject to the conditions specified in Section 11, be delivered promptly after the Determination Date and (b) to issue to Sellers the Share Consideration for distribution to the Sale Investor, of which (x) a number of shares of Parent Common Stock equal to the Share Consideration less the Shares payable Holdback will be delivered on the Closing Date and (y) the Shares Holdback shall become an element of the Holdback Amount and, upon the terms and subject to the conditions specified in Section 11, be delivered promptly after the Determination Date. Notwithstanding the foregoing, Buyer shall have the right, in its sole discretion, to pay to Sellers, in lieu of issuing the Share Consideration pursuant to clause (b) of the immediately preceding sentence, an aggregate amount of cash equal to $2,516,968 (Two Million Five Hundred Sixteen Thousand Nine Hundred Sixty-Eight Dollars), of which $2,091,968 (Two Million Ninety-One Thousand Nine Hundred Sixty-Eight Dollars) shall be delivered on the Closing Date and $425,000 (Four Hundred Twenty-Five Thousand Dollars) shall constitute the Shares Holdback and, upon the terms and subject to the conditions specified in Section 11, delivered promptly after the Determination Date. The Parties agree that all Shares of Parent Common Stock acquired by the Company Investor pursuant to this Agreement (including, without limitation, any shares of Parent Common Stock constituting a portion of the “Purchase Consideration”) Shares Holdback), shall be deemed to be satisfied in full have been acquired by the allotment and issuance Investor on the Closing Date for purposes of new Shares (credited as fully paidRule 144(d)(3)(iii) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor may, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the following:
(a) The Valuation of the Target (as defined below);;
(i) On the basis that the Valuation of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%.
(ii) Where the Valuation of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the otherSecurities Act.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the Consideration Shares.
Appears in 1 contract
Purchase Consideration. Pursuant The aggregate purchase price to the terms of the SPA, the purchase consideration be paid by Buyer for the Sale Shares payable by the Company Purchased Assets (the “Purchase ConsiderationPrice”) shall be deemed payable to be satisfied in full by the allotment and issuance Seller, or any third party designee of new Shares (credited as fully paid) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor maySeller, in its absolute discretioncash and stock of ASTV, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the followingfollows:
(a) The Valuation On the Closing Date, Buyer will pay to Seller One Million Five Hundred Sixty Thousand Dollars ($1,560,000).
(b) As part of the Target consideration for the Purchased Assets, HNHI previously issued to Seller and its designees, Five Million (5,000,000) unregistered shares of common stock of HNHI (all shares issued to Seller by either HNHI or to be issued to Seller by ASTV shall be referred to as defined below“Shares”);;. Subsequent to the issuance of the Shares, ASTV, in October, 2011, undertook a one-for-twenty reverse stock split. Accordingly, Seller, as of the Closing Date, owns Two Hundred Fifty Thousand (250,000) Shares. A new stock certificate for such post-reverse stock split Shares will be issued and delivered on the Closing Date upon submission to Buyer of the pre-split certificate. Buyer acknowledges and agrees that the 250,000 Shares referenced in this Section 2.5(b) of this Agreement, having been held for more than one year since issue, are now unrestricted and freely transferrable as of the Closing Date.
(c) On the Closing Date, ASTV will deliver to Seller Two Hundred Fifty Thousand (250,000) new Shares in such denominations as agreed by the parties. Those Shares will be subject to a one-year lock-up agreement in the form attached hereto as Exhibit “B.”
(d) Seller may designate certain persons to receive directly a portion of its Shares described in paragraphs (b) and (c) above. Those persons shall agree in writing that they shall be obligated to treat those Shares in the same manner in which Shares are treated under this Agreement, including but not limited to, the sale provisions hereof, and that they shall promptly communicate any sale of such Shares and the appropriate sale information to Seller, who shall promptly transmit that information to Buyer. All other transfers of Seller’s Shares shall be in accordance with applicable state and federal securities laws.
(e) On the Closing Date, ASTV will deliver to Seller Two Hundred Fifty Thousand (250,000) new Warrants at an exercise price of Sixty-Four Cents ($.64) for a period of three (3) years from the Closing Date. The Warrants shall be subject to piggy-back registration rights.
(f) Buyer previously has paid to Seller Fifty Thousand Dollars ($50,000) in cash or other immediately available funds.
(g) Commencing not later than April 1, 2012, and for each of the succeeding four years, Buyer shall contribute in the names of SOTV/▇▇▇▇▇▇▇▇ the amount of Ten Thousand Dollars ($10,000) per year, for a total contribution of Fifty-Thousand Dollars ($50,000), to The ▇▇▇▇▇▇▇ Cancer Center in Tampa, Florida. Seller acknowledges that payment of $10,000 of this amount previously has been made to The ▇▇▇▇▇▇▇ Cancer Center.
(h) Buyer also previously issued to Seller, or its designee, One Million (1,000,000) warrants to acquire additional shares of ASTV, at an exercise price equal to Thirty-five Cents ($.35), exercisable at any time and with an expiration date five (5) years from the date of issue. Following the one for twenty reverse stock split, that grant shall constitute Fifty Thousand (50,000) warrants to acquire Shares at an exercise price reduced to One Dollar ($1.00) each for a period of five (5) years from the new issue date.
(i) On the basis The Parties agree that the Valuation shares of common stock can be sold in accordance with Rule 144 of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued Securities Act subject to the Vendor (or lock-up Agreement attached as Exhibit B. If ASTV undertakes a registration of its shares with the U.S. Securities and Exchange Commission, Seller shall have “piggy-back registration rights” with respect to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%Shares.
(iij) Where Notwithstanding any other provision of this Agreement, from the Valuation Closing Date through December 31, 2014 and if Seller continues to own during that time at least 250,000 Shares that it has received under the terms of the Target is determined this Agreement, Seller shall have anti-dilution protection on all of its Shares that it has received or will receive pursuant to this Agreement. If any shares of common stock of ASTV are issued by ASTV during that time frame, Seller shall be more than S$50 million, the Vendor and the Company agree that the total number of Consideration issued additional Shares to be allotted and issued maintain its proportional ownership in ASTV. The foregoing anti-dilution protection shall not apply to the Vendor (or to its order) shall constitute a percentage issuance of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior Shares pursuant to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and any warrants that have been issued by ASTV to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the otherClosing Date.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the Consideration Shares.
Appears in 1 contract
Purchase Consideration. Pursuant to the terms of the SPA, the purchase The aggregate consideration for the Sale Shares payable by the Company Acquired Assets (the “Purchase Consideration”) shall be deemed to be satisfied in full by the allotment and issuance is: (a) an amount of new Shares (credited as fully paid) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor cash (the “Issue PriceCash Consideration”) to satisfy the Purchase Consideration equal to: (fractional entitlements disregardedi) thirty two million five hundred thousand and 00/100 U.S. Dollars ($32,500,000) (the “Initial Cash Consideration”), minus (ii) the amount, if any, by which (A) each Seller’s current assets (excluding current or deferred Tax assets) as historically calculated in accordance with the Sellers’ past practices as of 12:01 A.M. Eastern time on the Closing Date that are included in the Acquired Assets, minus each Seller’s current liabilities (excluding Indebtedness, Transaction Expenses and deferred Tax Liabilities) as historically calculated in accordance with the Sellers’ past practices as of 12:01 A.M. Eastern time on the Closing Date that are included in the Assumed Liabilities (“Net Working Capital”), is less than (B) the Net Working Capital Target; plus (iii) the amount, if any, by which the Net Working Capital is more than the Net Working Capital Target.
(b) the assumption of the Assumed Liabilities, to be assumed on the Closing Date.
(c) Notwithstanding anything in this Agreement to the contrary, the Purchaser and Holdings shall be permitted to round down the number of any Equity Consideration Shares to be issued to the Owner pursuant to this Agreement to the nearest whole number in order to avoid issuing any fractional shares, provided that to the extent that the number of such Equity Consideration Shares is “rounded down”, the Purchaser shall also pay or cause to be paid to the Sellers an amount of cash equal to the product obtained by multiplying (i) such fraction of an Equity Consideration Share that has been rounded down by (ii) the applicable per share issuance price with respect to such Equity Consideration Shares”). For .
(d) On the avoidance of doubtPayment Date, the Vendor may, in its absolute discretion, renounce Purchaser and Holdings may elect to pay some or all or any part of the Cash Consideration through Equity Consideration Shares in favour lieu of any other person or persons as the Vendor maycash, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable subject to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2terms set forth below; provided that at least One Million Three Hundred Thirty Five Thousand U.S. Dollars ($1,335,000) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the following:Cash Consideration shall be paid in cash.
(ae) The Valuation If the Purchaser and Holdings elect to pay ten percent (10%) or less of the Target (as defined below);;Cash Consideration in Equity Consideration Shares, such Equity Consideration Shares will be issued on the Payment Date by dividing the amount of Cash Consideration to be paid through Equity Consideration Shares by the Issuance Per Share Price. If the Purchaser and Holdings elect to pay more than 10% of the Cash Consideration through Equity Consideration Shares in lieu of cash, then:
(i) On the basis that the Valuation Twenty percent (20%) of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Equity Consideration Shares to be allotted and issued to the Vendor Seller Parties (or to its orderthe “Uncollared Equity Consideration Shares”) shall constitute 92% be issued on the Payment Date to the Seller Parties at the Issuance Per Share Price, as calculated by dividing twenty percent (20%) of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Cash Consideration to be paid in Equity Consideration Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%Issuance Per Share Price.
(ii) Where Of the Valuation remaining eighty percent (80%) of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number of Equity Consideration Shares to be allotted and issued to the Vendor Seller Parties (or to its orderthe “Collared Equity Consideration Shares”), thirty percent (30%) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the other.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Collared Equity Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar on the Payment Date at the Issuance Per Share Price to the Seller Parties, as calculated by dividing twenty four percent (24%) of the Cash Consideration to be paid in Equity Consideration Shares in issue by the Issuance Per Share Price (the “Payment Date Collared Share Value”), provided, however, that if, on the first anniversary of the Payment Date, the First Anniversary Issuance Per Share Price is less than the Issuance Per Share Price, then, except for each of the Collared Equity Consideration Shares issued pursuant to this Section 1.5(e)(ii) that they will not rank for any dividendthe Seller Parties have retained as of the first anniversary of the Payment Date (the “Retained Collared Equity Shares”), rightHoldings shall issue additional Collared Equity Consideration Shares (the “True-Up Equity Consideration Shares”) to the Seller Parties equal to: (1) the Retained Collared Equity Shares multiplied by the Issuance Per Share Price, allotment or other distributionsdivided by (2) the First Anniversary Issuance Per Share Price, minus (3) the Retained Collared Equity Shares.
(iii) The remainder of the Collared Equity Consideration Shares shall be issued on the first anniversary of the Payment Date (the “First Anniversary Issuance Date”) as follows:
(1) If the First Anniversary Issuance Per Share Price is less than the Issuance Per Share Price, then an amount of Collared Equity Consideration Shares issued at the Issuance Per Share Price as needed to pay the remainder of the Cash Consideration owed to the Seller Parties.
(2) If the First Anniversary Issuance Per Share Price is more than the Issuance Per Share Price but less than the Issuance Per Share Price Collar, then an amount of Collared Equity Consideration Shares that would have been issued at the Issuance Per Share Price as needed to pay the remainder of the Cash Consideration owed to the Seller Parties.
(3) If the First Anniversary Issuance Per Share Price is more than the Issuance Per Share Price Collar, then an amount of Collared Equity Consideration Shares issued at the First Anniversary Issuance Per Share Price as needed to pay the remainder of the Cash Consideration owed to the Seller Parties.
(4) In the event that the value of the Collared Equity Consideration Shares issued pursuant to Section 1.5(e)(ii), measured at the First Anniversary Issuance Per Share Price, exceeds 90% of the amount of the Purchase Consideration paid in Equity Consideration Shares, the record date for Purchaser shall not issue any additional Collared Equity Consideration Shares to the Seller Parties, and the Seller Parties shall repay, in either cash or Collared Equity Consideration Shares, the amount by which falls on or before the date of issue value of the Collared Equity Consideration Shares issued pursuant to Section 1.5(e)(ii), measured at the First Anniversary Issuance Per Share Price, exceeds 90% of the amount of the Purchase Consideration which was designated on the Payment Date to be paid in Equity Consideration Shares.
(iv) The Seller Parties shall keep the Uncollared Equity Consideration Shares in a separate and distinct brokerage account from the Collared Equity Consideration Shares until all of the Equity Consideration Shares have been sold by the Seller Parties. provided, however, that if the Class A Common Stock of Holdings is not listed on the NYSE at the First Anniversary Issuance Date, Holdings shall pay to the Sellers on the First Anniversary Issuance Date an amount in cash equal to the value of the (i) remainder of the Cash Consideration not paid on the Payment Date plus (ii) (1) if the stock remains listed on any public stock exchange, the value of the True-Up Equity Consideration Shares or (2) if the stock is no longer listed on any public stock exchange, then the cash value
Appears in 1 contract
Purchase Consideration. Pursuant BlastGard currently has 1,000 Preferred Shares authorized, none of which are outstanding. BlastGard's board has the right to determine the rights and preferences of any Preferred Shares to be issued. BlastGard has also authorized 100,000,000 shares of Common Stock, with 56,086,142 shares issued and outstanding and 42,099,283 shares reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants and promissory notes. Following the filing of BlastGard's 2010 Form 10-K and after receipt of the audited financial statements for HighCom and the appropriate pro form financial statements, BlastGard intends to file a proxy statement with the Securities and Exchange Commission to increase the authorized number of shares of Common Stock of BlastGard to 500,000,000 common shares so as to accommodate the anticipated issuance of the purchase consideration described below and to have sufficient capital stock to provide for BlastGard's future needs ("Stockholder Approval"). It is anticipated that stockholder approval for the increase will occur within one year from the date hereof. The purchase consideration will consist of a payment of cash, Preferred Stock and common stock of BlastGard (the "Stock Payment"). The assets and current outstanding obligations of HighCom are to be itemized in the formal Stock Purchase Agreement referred to herein and made a part hereto by this reference. It being understood that the earn-out shares as referenced in Items (b), (c), and (d) below in this paragraph will be reserved once Blastgard has Increased its authorized common stock by stockholder approval. The terms of the Stock Payment shall be set such that all the shares and payments will be set aside and reserved and placed into escrow (or irrevocable trust at appropriate time) to be released for HighCom’s shareholders as follows: (a) 10,000,000 shares of common stock upon execution of the definitive agreement by all parties; (b) 100 Preferred convertible into 10,000,000 shares of common stock at such time as the company achieves a gross revenue of $5 million dollars within 18 months of close; (c) 100 Preferred convertible into 10,000,000 shares of common stock at such time as the company achieves a gross revenue of $10 million dollars within 24 months of close; and lastly (d) 150 Preferred convertible into 15,000,000 shares of common stock at such time as the company achieves a gross revenue of $15 million dollars within 30 months of close. It is understood that HighCom's shareholders shall be entitled to a pro rata delivery of earn-out shares (as described below) in the event a milestone is not 100% achieved or in the event Blastgard does not raise the amount of two million five hundred thousand dollars, the Highcom shareholders shall be entitled to the same pro rata delivery of shares. At Closing, BGI shall deliver its promissory notes representing its promise to pay $200,000 to HighCom shareholders at the earlier of ninety day or upon receipt of audited financials from HighCom, unless HighCom fails to provide the requested material to the extent they exist with such audit to start within ten days or as soon as practicable. An additional payment of $100,000 will be released upon revenues of $2 million dollars being achieved by HighCom which shall be paid pro-rata and shall be calculated based on revenue achieved at the end of 8 months post close. Upon signing of this Letter of Intent, M▇. ▇▇▇▇▇ will place 100% of his HighCom shares into an irrevocable trust; the terms of the SPA, the purchase consideration for the Sale Shares payable by the Company (the “Purchase Consideration”) shall be deemed sale of those shares to be satisfied in full negotiated with the Trustee upon closing. All sales mentioned above refer to sales from products presently marketed by the allotment and issuance of new Shares (credited as fully paid) by the Company HighCom. In addition BlasGard will use its all commercially reasonable efforts to the Vendor (and/or its designated nominees), such new Shares cause Y▇▇▇▇ ▇▇▇▇▇ to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor may, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks removed from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the following:
(a) The Valuation of the Target (as defined below);;
(i) On the basis that the Valuation of the Target is determined to be not less than S$25 million but not more than S$50 million, the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute 92% of the total issued capital of the Company on a fully enlarged basis immediately following Completion, with the Shares held by or for the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%.
(ii) Where the Valuation of the Target is determined to be more than S$50 million, the Vendor and the Company agree that the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute a percentage of the total issued capital of the Company on a fully enlarged basis immediately following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree personal guarantee on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the otherbank loans.
(d) Where new Shares or securities convertible into new Shares are issued prior to Completion for valuable consideration (other than in connection with the Proposed Acquisition) with the mutual agreement of the Vendor and the Company, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the Consideration Shares.
Appears in 1 contract
Sources: Binding Letter of Intent (Blastgard International Inc)
Purchase Consideration. Pursuant (a) On the Initial Closing Date, in consideration for the Shares, Purchaser shall deliver to each Seller a certificate representing the number of shares of Series I Preferred Stock set forth opposite such Seller's name on Schedule 2.2(a), under the column --------------- heading "Initial Consideration Shares" (the "Initial Consideration Shares"). Purchaser shall, concurrently therewith, deposit into the Escrow certificates representing the number of shares of Series I Preferred Stock set forth opposite such Seller's name on Schedule -------- 2.2
(a) under the column heading "Escrow Shares" (the "Escrow Shares"). ------ The Escrow Shares shall be released to Sellers or Purchaser, as the case may be, pursuant to the terms of the SPA, the purchase consideration for the Sale Shares payable by the Company (the “Purchase Consideration”) shall be deemed to be satisfied in full by the allotment and issuance of new Shares (credited as fully paid) by the Company to the Vendor (and/or its designated nominees), such new Shares to be allotted and issued at an issue price to be determined by mutual agreement between the Company and the Vendor (the “Issue Price”) to satisfy the Purchase Consideration (fractional entitlements disregarded) (the “Consideration Shares”). For the avoidance of doubt, the Vendor may, in its absolute discretion, renounce all or any part of the Consideration Shares in favour of any other person or persons as the Vendor may, in its absolute discretion, deem fit. The Purchase Consideration for the Sale Shares payable by the Company shall be determined by mutual agreement in writing between the Company and the Vendor within two (2) weeks from the issue of the report produced in connection with the Proposed Acquisition valuing the business of the Target by an independent business valuer or such other person (acceptable to the financial adviser of the Company) to be appointed by the Company pursuant to Rule 1015(2) of the SGX- ST Catalist Rules (“Business Valuation Report”). In arriving at the Purchase Consideration, the Company and the Vendor agree to take into account the following:Escrow Agreement.
(ab) The Valuation of On the Target (as defined below);;Second Closing Date:
(i) On in the basis event that the Valuation Trigger Event is the completion of the Target Measurement Period following the IPO, Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Common Stock, if any, which, when added to the Common Stock received by Sellers following conversion of the Initial Consideration Shares (the "Converted Initial Consideration Shares") equals the Aggregate Purchase Price divided by the Average Price; provided that, if the Market Capitalization is determined to be not less than S$25 million but not more than S$50 million$13.5 billion, then on the total Second Closing Date Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Common Stock such that, such shares together with the Converted Initial Consideration Shares to be allotted and issued to the Vendor (or to its order) shall constitute 92equals 7.4% of the total issued capital of the Company Purchaser's Common Stock on a fully enlarged basis immediately Fully-Diluted Basis following Completion, with such issuance on the Shares held by or for Second Closing Date less the existing Shareholders of the Company and any other parties designated by the Company (including any introducer who is entitled to payment of fee) constituting the balance 8%.Option Amount;
(ii) Where in the Valuation event that the Trigger Event is the Acquisition of the Target is determined to be more than S$50 million, the Vendor Purchaser by a publicly listed company and the Company agree Series I Preferred Stock has converted to Common Stock, Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Common Stock on the Second Closing Date, if any, which, when added to the Common Stock then held by Sellers, equals the Aggregate Purchase Price divided by the Acquisition Price; provided that, if the Market Capitalization is less than $13.5 billion, then on the Second Closing Date Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Common Stock which, when added to the Converted Initial Consideration Shares, equals 7.4% of Purchaser's Common Stock on a Fully-Diluted Basis following such issuance less the Option Amount;
(iii) in the event that the total Trigger Event is the Acquisition of Purchaser by a publicly listed company and the Series I Preferred Stock has not converted to Common Stock, Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of Consideration Shares to be allotted and issued shares of Series I Preferred Stock on the Second Closing Date, if any, which, when added to the Vendor (or Series I Preferred Stock then held by Sellers, entitles Sellers to its order) obtain upon conversion a number of Shares of Common Stock equal to the Aggregate Purchase Price divided by the Acquisition Price; provided that, if the Market Capitalization is less than $13.5 billion, then on the Second Closing Date Purchaser shall constitute deliver to each Seller a percentage certificate representing such Seller's Portion of a number of shares of Series I Preferred Stock which, when added to the total issued capital Initial Consideration Shares, entitles Sellers to obtain upon conversion 7.4% of the Company Purchaser's Common Stock on a fully enlarged basis immediately Fully-Diluted Basis following Completion (“Entitled Percentage”) determined as follows: Entitled Percentage (%) = VT - Sv x 100 VT Where: VT = Valuation of such issuance less the Target Sv = S$4 million
(c) Where the Valuation of the Target is determined to be less than S$25 million, either of the Vendor and the Company may exercise its right of termination under the SPA provided always that prior to the exercise of such termination, the Vendor and the Company (each acting reasonably) shall enter into good faith discussion and negotiations to determine if parties can reach mutual agreement to continue with the Proposed Acquisition and if so, agree on the total number of Consideration Shares to be allotted and issued to the Vendor (or to its order) as well as the percentage shareholding that such Consideration Shares would constitute in respect of the total issued capital of the Company on a fully enlarged basis immediately following Completion. For the avoidance of doubt, where the Vendor and the Company are not able to reach mutual agreement as aforesaid within 30 days after the Valuation of the Target has been determined, either party shall be entitled to exercise its right of termination under the SPA without further reference to the otherOption Amount.
(div) Where new Shares In the event that the Trigger Event is (w) an Acquisition by a company which is not publicly listed, (x) a Major Issuance or securities convertible into new Shares are issued (y) a Purchaser Election and in any such case the Series I Preferred Stock has converted to Common Stock, Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Common Stock, if any, which, when added to the Converted Initial Consideration Shares, equals 8.0% of Purchaser's Common Stock on a Fully-Diluted Basis following such issuance less the Option Amount (but prior to Completion for valuable consideration (other than giving effect to any issuance of Common Stock in connection with such Trigger Event); and
(v) In the Proposed Acquisitionevent that the Trigger Event is (w) an Acquisition by a company which is not publicly listed, (x) a Major Issuance or (y) a Purchaser Election and in any case the Series I Preferred Stock has not converted to Common Stock, Purchaser shall deliver to each Seller a certificate representing such Seller's Portion of a number of shares of Series I Preferred Stock, if any, which, when added to the Initial Consideration Shares, entitles Sellers to obtain upon conversion 8.0% of Purchaser's Common Stock on a Fully-Diluted Basis following such issuance less the Option Amount (but prior to giving effect to any issuance of Common Stock in connection with such Trigger Event) (as the case may be, the "Additional Consideration Shares" and, together with the mutual agreement of the Vendor Escrow Shares, and the CompanyInitial Consideration Shares or the Converted Initial Consideration Shares, as the case may be, the Vendor and the Company (both acting reasonably) shall enter into good faith discussion and negotiations to arrive at a mutually acceptable adjustment to the Purchase Consideration and the number of Consideration Shares to be allotted and issued to the Vendor (or to its order). The Consideration Shares shall be issued as fully-paid shares and shall rank pari passu in all respects with and carry all rights similar to the Shares in issue then, except that they will not rank for any dividend, right, allotment or other distributions, the record date for which falls on or before the date of issue of the "Consideration Shares").
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