Company Lock-Up (i) The Company will not, without the prior written consent of the Representative, for a period of 180 days from the date of this Agreement (the “Lock-Up Period”), (i) issue, offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period.
(ii) The restrictions contained in Section 3(n)(i) hereof shall not apply to: (A) the Offered Securities, (B) the Underlying Shares, (C) any shares of Common Stock issued pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding as of the Applicable Time and as described in the Registration Statement, the Disclosure Package or the Prospectus, (D) any shares of Common Stock or options to purchase any shares of Common Stock or other any shares of Common Stock based award issued or granted pursuant to the Company’s stock incentive plans, stock purchase plan, stock ownership plan or dividend reinvestment plan in effect at the Applicable Time and as described in the Registration Statement, the Disclosure Package or the Prospectus, and (E) shares of Common Stock or other securities issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity; provided that (x) the aggregate number of shares of Common Stock issued pursuant to clause (E) shall not exceed five percent (5%) of the total number of outstanding shares of Common Stock immediately following the issuance and sale of the Offered Securities pursuant hereto and (y) the recipient of any such shares of Common Stock or other securities issued or granted pursuant to clause (E) during the Lock-Up Period shall enter into an agreement substantially in the form of Exhibit B hereto.
Company SEC Reports (a) The Company has filed with the SEC all forms, reports, schedules, statements and other documents required to be filed by it since January 1, 1996 under the Securities Act or the Exchange Act (such documents, as supplemented or amended since the time of filing, collectively, the "Company SEC Reports"). As of their respective dates, the Company SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, at the time filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (a) complied, in all material respects, with all applicable requirements of the Securities Act and the Exchange Act, as the case may be and (b) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The audited consolidated financial statements and unaudited consolidated interim financial statements (the "Financial Statements") included or incorporated by reference in the Company SEC Reports (including any related notes and schedules) fairly present, in all material respects, the financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the results of their operations and their cash flows for the periods set forth therein, in each case in accordance with past practices and GAAP consistently applied during the periods involved (except as otherwise disclosed in the notes thereto and subject, where appropriate, to normal year-end adjustments that would not be material in amount or effect).
(b) The Company has heretofore made available or promptly will make available to MergerSub a complete and correct copy of any amendments or modifications to any Company SEC Reports filed prior to the date hereof which are required to be filed with the SEC but have not yet been filed with the SEC.
(c) The Company will file with the SEC and promptly will make available to MergerSub true and complete copies of each form, registration statement, report, schedule, proxy or information statement and other documents (including exhibits thereto) required to be filed with the SEC under the Securities Act or the Exchange Act.
Company SEC Documents The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) or furnished with the SEC all reports, schedules, forms, statements, and other documents (including exhibits and other information incorporated therein) that have been filed or were required to be filed or furnished by it under the Exchange Act or the Securities Act since December 31, 2020 (all such documents collectively, the “Company SEC Documents”). The Company SEC Documents, including any audited or unaudited financial statements and any notes thereto or schedules included therein (the “Company Financial Statements”), at the time filed or furnished (except to the extent corrected by a subsequently filed Company SEC Document filed prior to the date of this Agreement) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, (iii) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, (iv) were prepared in conformity with generally accepted accounting principles for financial reporting in the United States applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) and (v) fairly present (subject in the case of unaudited statements to normal, recurring and year-end audit adjustments), in all material respects, the consolidated financial position of the business of the Company as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended. KPMG LLP is an independent registered public accounting firm with respect to the Company and has not resigned or been dismissed as independent registered public accountants of the Company as a result of or in connection with any disagreement with the Company on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures.
Earn-Out (a) Buyer agrees to pay to Seller, as additional consideration for the purchase of the Shares, an amount (the “Earnout Amount”) equal to: (i) the Specified Voluntary GWP during the Reference Period, minus (ii) $25,000,000; provided, that in no event shall Buyer pay Seller more than $25,000,000 under this Section 2.6. If the Specified Voluntary GWP during the Reference Period does not exceed $25,000,000, no Earnout Amount shall be due under this Section 2.6. An example calculation of the Earnout Amount is attached hereto as Exhibit I.
(b) For purposes of this Section 2.6, the Specified Voluntary GWP and the Earnout Amount shall be determined as follows:
(i) Within 30 days following each of (w) the three-month anniversary of the Earnout Commencement Date, (x) the six-month anniversary of the Earnout Commencement Date, (y) the nine-month anniversary of the Earnout Commencement Date and (z) the last day of the Reference Period, Buyer shall prepare and deliver to Seller a statement (each an “Earnout Statement,” and the Earnout Statement delivered pursuant to the foregoing clause (z), the “Final Earnout Statement”) setting forth its good faith calculation of the Specified Voluntary GWP and the corresponding Earnout Amount then-accrued during the Reference Period, and shall pay to the Seller (by wire transfer of immediately available funds to the bank account or accounts designated by Seller to Buyer), with the delivery of the Earnout Statement, any positive Earnout Amount shown thereon and not previously paid to Seller pursuant to this Section 2.6;
(ii) Following the Closing and until the final determination of the Earnout Amount pursuant to Section 2.6(b)(iii), subject to Applicable Law, Buyer shall grant Seller and its Representatives, upon reasonable prior notice, reasonable access during normal business hours to the books and records (redacted or aggregated as required to not violate any confidentiality obligations of the Buyer and its Affiliates) of Buyer and its Affiliates directly related to Specified Voluntary GWP that are relevant to the Earnout Statements, and, during such period, Buyer shall furnish to Seller such information that relates to Buyer’s obligations under this Section 2.6 as Seller may from time to time reasonably request; provided such access does not interfere with the conduct of the business of the Buyer or any of its Affiliates in any material respect;
(iii) The Final Earnout Statement and its calculation of Specified Voluntary GWP shall be final and binding on the parties unless Seller shall, within 45 days following the delivery of the Final Earnout Statement, deliver to Buyer written notice of objection (an “Earnout Dispute Notice”) with respect to the Final Earnout Statement. The Earnout Dispute Notice shall specify in reasonable detail the disputed items on the Final Earnout Statement and describe in reasonable detail the basis for the disputed items and the amount in dispute. Following the delivery of an Earnout Dispute Notice, the parties shall consult with each other with respect to the disputed items and attempt in good faith to resolve the dispute. If the parties are unable to reach agreement within 30 days after delivery of an Earnout Dispute Notice, such dispute shall be resolved in accordance with the same dispute resolution procedures that apply to resolution of disputes with respect to the Final Payment Statement in accordance with Section 2.5(d) and Section 2.5(e), applied mutatis mutandis.
(c) If the Earnout Amount as finally determined pursuant to Section 2.6(b)(iii) is positive and exceeds the aggregate amount previously paid pursuant to Section 2.6(b)(i), within 30 days of such determination, Buyer shall pay Seller, by wire transfer of immediately available funds to the bank account or accounts designated by Seller to Buyer, an amount equal to (i) the Earnout Amount, minus (ii) any prior payments of the Earnout Amount made to Seller under this Section 2.6. In the event Buyer has paid Seller $25,000,000 under this Section 2.6, the Buyer's obligations under this Section 2.6 shall terminate.
(d) The parties acknowledge and agree that (i) any Earnout Amount is not guaranteed and is highly speculative and is subject to numerous factors outside of Buyer's and its Affiliates’ control, (ii) any Earnout Amount is payable at a level that reflects strong future performance, (iii) there is no assurance that any Earnout Amount will be achieved and neither Buyer nor any of its Affiliates has promised or projected such achievement and (iv) that subject to their obligations under Section 2.6(e), Buyer, its Affiliates and their respective Representatives shall have sole discretion over the business and operations of the Buyer and its Affiliates (including the Transferred Companies from and after the Closing) and may make business decisions which they believe to be appropriate but in hindsight may directly or indirectly affect the likelihood that any Earnout Amount is payable. The right to receive any Earnout Amount (if any) hereunder (A) is solely a contractual right and is not a security, (B) is solely represented by this Agreement and is not represented by any certificate, instrument or other delivery, (C) shall confer upon Seller, WIMC or any of their respective Affiliates only the rights of a general unsecured creditor under Applicable Law, (D) does not give Seller, WIMC or any of their respective Affiliates any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of equity securities of the Buyer, its Affiliates (including the Transferred Companies from and after the Closing), or any other Person, (E) is not redeemable and (F) may not be transferred, assigned, conveyed, gifted, pledged or otherwise hypothecated by Seller.
(e) Buyer and its Affiliates shall (i) act in good faith and use their commercially reasonable efforts which, for these purposes, shall mean the efforts typically used by Buyer and its Affiliates in developing, launching, marketing, selling and otherwise promoting other new insurance products (as such efforts might be reasonably adapted for purposes of promoting this product) to produce Specified Voluntary GWP in an amount such that the Earnout Amount equals $25,000,000, (ii) without limiting the foregoing, not take any action, the sole purpose of which, is to reduce and eliminate Buyer's obligations under this Section 2.6., and (iii) that from and after the Closing Date until the final determination of the Earnout Amount in accordance with Section 2.6(b), maintain the books and records contemplated by Section 2.6(b) such that they are complete and accurate in all material respects. Subject to the foregoing, the parties acknowledge and agree that Buyer and its Affiliates (including the Transferred Companies from and after the Closing) shall have the power and right to control all aspects of their business and operations.
(f) Seller and its Affiliates shall, and shall cause each of their Representatives to, maintain in confidence any information derived from the books and records contemplated by Section 2.6(b) in accordance with their obligations under Section 4.3(c); provided, that the term of such obligations under Section 4.3(c) with respect to such information shall survive for a period of three years after the expiration of the Reference Period.
(g) Buyer will give Seller notice thereof promptly following the first date when Buyer or one of its Affiliates starts writing Specified Voluntary GWP.
Certificate of Selling Stockholders A certificate, dated such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling Stockholder confirming that the certificate delivered at Closing Time pursuant to Section 5(f) remains true and correct as of such Date of Delivery.
Certificates Describing Partnership Units At the request of a Limited Partner, the General Partner, at its option, may issue a certificate summarizing the terms of such Limited Partner's interest in the Partnership, including the number of Partnership Units owned and the Percentage Interest represented by such Partnership Units as of the date of such certificate. Any such certificate (i) shall be in form and substance as approved by the General Partner, (ii) shall not be negotiable and (iii) shall bear the following legend: This certificate is not negotiable. The Partnership Units represented by this certificate are governed by and transferable only in accordance with the provisions of the Agreement of Limited Partnership of United Dominion Realty, L.P., as amended from time to time.
Company Lock Up Agreements The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the Placement Agent, it will not for a period of thirty (30) days after the date of this Agreement (the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any ADSs, Ordinary Shares or other capital stock of the Company or any securities convertible into or exercisable or exchangeable for ADSs, Ordinary Shares or such other shares of capital stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering of any ADSs, Ordinary Shares or other shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; or (iii) complete any offering of debt securities of the Company, other than entering into a line of credit with a traditional bank or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of ADSs, Ordinary Shares or other capital stock of the Company, whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of ADSs, Ordinary Shares or other shares of capital stock of the Company or such other securities, in cash or otherwise. The restrictions contained in this Section 3.18 shall not apply to (i) the ADSs, Ordinary Shares and the Placement Agent’s Warrant, (ii) the issuance by the Company of ADSs upon the exercise of the Placement Agent’s Warrant or a stock option or warrant or the conversion of a security outstanding on the date hereof, or issuable pursuant to currently existing undertakings of the Company, which is disclosed in the Registration Statement, Disclosure Package and Prospectus, provided that such options, warrants, and securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the term of such securities, (iii) the issuance by the Company of stock options, shares of capital stock of the Company or other awards under any equity compensation plan of the Company, provided that the underlying shares shall be restricted from sale during the entire Lock-Up Period; and (iv) transactions with members of the management and/or the board of directors of the Company, involving the issuance of equity securities of the Company in consideration of cash, provided that the underlying shares shall be restricted from sale during the entire Lock-Up Period.