1、Exchange Agreement 债转股协议THIS EXCHANGE AGREEMENT (this “Agreement“) is made and entered into as of_,_,_(M/D/Y) (the “Agreement Date“) by and between AAA, INC., a _(PLACENAME) corporation (“AAA“), and BBB(sb), an individual (“CCC Shareholder“), who is the sole shareholder of CCC LTD., a corporation or
2、ganized and existing under the laws of _(PLACENAME) (“CCC _(PLACENAME)“), and CCC _(PLACENAME), Inc., a _(PLACENAME) corporation (“CCC _(PLACENAME)“) (CCC _(PLACENAME) and CCC _(PLACENAME) are sometimes collectively referred to as “CCC“).RECITALSA. The parties intend that, subject to the terms and c
3、onditions 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 issue
4、d 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,
5、and is not intended to qualify as, a reorganization under Section 368 of the U.S. Internal Revenue Code of 1986, as amended (the “Code“).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
6、.1 “Closing“ is defined in Section 7.1.1.2 “Closing Date“ is defined in Section 7.1.1.3 “Entrust Agreement“ means that certain Comprehensive Cross Certification Agreement, dated _,_,_(M/D/Y), between CCC Consulting (Pty) Ltd. and Entrust Technologies, Inc.1.4 “Exchange“ means, collectively, the exch
7、ange of all of the issued and outstanding CCC Stock for the Exchange Shares contemplated by Section 2 below.1.5 “Exchange Number“ means the quotient obtained by dividing (i) the Exchange Shares (as defined below) by (ii) the CCC Fully Diluted Number.1.6 “Exchange Shares“ means the total number of sh
8、ares of AAA Common Stock, as presently constituted, that will be 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 “Rest
9、raint Shares“ means the total number 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 “Restrained Persons“) set forth in Exhibit 9.9 heret
10、o, which number of Restraint 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 s
11、atisfy 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 “Shareholder Ancillary Agreements“ means, collectively the Investment Representat
12、ion Letter, the Escrow Agreement, the Registration Rights Agreement, the Share Transfer Form CM 42, being the form prescribed by _(PLACENAME) law (the “Share Transfer Form“), Form W 8 and each other agreement, certificate or document (other than this Agreement) to which the CCC Shareholder is to ent
13、er into as a party thereto, or is to otherwise execute and deliver pursuant to or in connection with this Agreement.1.9 “CCC Ancillary Agreements“ means, collectively, each agreement, certificate or document (other than this Agreement) which CCC is to enter into as a party thereto, or is to otherwis
14、e execute and deliver, pursuant to or in connection with this Agreement.1.10 “CCC Certificates“ means the share certificates representing all the CCC Shareholders shares of CCC Stock.1.11 “CCC Fully Diluted Number“ means that number that is equal to the sum of the total number of shares that CCC _(P
15、LACENAME) Stock that are issued and outstanding immediately prior to the Closing.1.12 “CCC Shareholder“ means BBB(sb) who, immediately prior to the Closing, holds all the shares of CCC Stock that are issued and outstanding immediately prior to the Closing.1.13 “CCC _(PLACENAME) Stock“ means shares i
16、n the share capital of CCC _(PLACENAME), ZAR 1,00 par value per share, comprising the entire issued capital of CCC _(PLACENAME), as constituted immediately prior to the Closing.1.14 “CCC Stock“ means the CCC _(PLACENAME) Stock together with the CCC _(PLACENAME) Stock.1.15 “CCC _(PLACENAME) Stock“ me
17、ans shares in the share capital of CCC _(PLACENAME), $1.00 par value per share, comprising the entire issued capital of CCC _(PLACENAME), as constituted immediately prior to the Closing.1.16 “Transaction Shares“ means the total number of shares of AAA Common Stock, as presently constituted that will
18、 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 “AAA Ancillary Agreements“ means, collectively, each agreement, certificate or document (o
19、ther 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 “AAA Average Price Per Share“ means the lower of the closing price per share of AAA Common Stock (in U.S. dollars) as quoted on the N
20、asdaq 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 quot
21、ed 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 “AAA Common Stock“ means the Common Stock, $0.001
22、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 EXCHANGESubject to the terms and conditions of this Agreement, at the Closing:(a) the CCC Shareholder sha
23、ll 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 pa
24、y 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
25、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
26、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
27、 shall be granted registration rights under the Securities Act of 1933, as amended (the “1933 Act“) on the terms and subject to the conditions and limitations of the Registration Rights Agreement attached hereto as Exhibit 2.1.3 (the “Registration Rights Agreement“).2.1.4 Restraint Shares. The issua
28、nce 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
29、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
30、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 Shar
31、es 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 an
32、d 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 share
33、s 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 “Capital Change“), then the number of shares
34、of AAA Common Stock for which shares of CCC Stock are to be exchanged 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 mai
35、ntain 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 un
36、dertaken 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 Capit
37、al 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 “Escrow Shares“) and will deliver certificates representing such Escrow Shares to Chase Manhattan Bank and Trust Company,
38、 N.A. or a similar institution as agreed to in writing by the parties, as escrow agent (the “Escrow Agent“), together with related stock transfer powers, to be held by the Escrow Agent as security for the CCC Shareholders indemnification obligations under Section 11 and pursuant to the provisions of
39、 an Escrow Agreement (the “Escrow Agreement“) in substantially the form of Exhibit 2.4. The Escrow Shares will be represented by certificates issued in the name of the CCC Shareholder and will be held by the Escrow Agent during that time period (the “Escrow Period“) specified in the Escrow Agreement
40、. The CCC Shareholder hereby 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
41、Shareholder (the “Representative“) under 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
42、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, negotia
43、te 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 n
44、ecessary 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
45、 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 performi
46、ng 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 Representati
47、ve 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 ne
48、cessary 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 consumma
49、te 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
