SHARE PURCHASE AGREEMENT Dated as of March 10, 2023 by and between ARRIVAL and WESTWOOD CAPITAL GROUP LLC
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SHARE PURCHASE AGREEMENT Dated as of March 10, 2023 by and between ARRIVAL and WESTWOOD CAPITAL GROUP LLC
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SHARE PURCHASE AGREEMENT This SHARE PURCHASE AGREEMENT is made and entered into as of March 10, 2023 (this “Agreement”), by and between Westwood Capital Group LLC, a Delaware limited liability company (the “Investor”), and Arrival, a joint stock company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg having its registered office at 00X, xxx xxx Xxxxxxxx, X-0000 Xxxxxx, Xxxxx Xxxxx xx Xxxxxxxxxx and registered with the Luxembourg register of commerce and companies (Registre de commerce et des sociétés, Luxembourg) under number B248209 (the “Company”). RECITALS WHEREAS, the parties desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $300,000,000 worth of newly issued shares of the Company’s ordinary shares, with an accounting par value (“Ordinary Shares”); WHEREAS, such sales of Ordinary Shares by the Company to the Investor will be made in reliance upon the provisions of Section 4(a)(2) (“Section 4(a)(2)”) of the Securities Act of 1933, as amended (“Securities Act”) and Rule 506(b) of Regulation D promulgated by the Commission under the Securities Act (“Regulation D”), and upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the sales of Ordinary Shares to the Investor to be made hereunder; WHEREAS, the parties hereto are concurrently entering into a Registration Rights Agreement in the form attached as Exhibit A hereto (the “Registration Rights Agreement”), pursuant to which the Company shall register under the Securities Act the resale of the Registrable Securities (as defined in the Registration Rights Agreement) by the Investor, upon the terms and subject to the conditions set forth therein; and WHEREAS, in consideration for the Investor’s execution and delivery of this Agreement, the Company will cause its transfer agent to issue to the Investor the Commitment Shares pursuant to and in accordance with Section 7.2(xiii) and Section 10.1(ii). NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS Capitalized terms used in this Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof, or as otherwise set forth in this Agreement.
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2 ARTICLE II PURCHASE AND SALE OF ORDINARY SHARES Section 2.1 Purchase and Sale of Shares. Upon the terms and subject to the conditions of this Agreement, during the Investment Period, the Company, in its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall purchase from the Company, up to $300,000,000 (the “Total Commitment”) in aggregate (i) gross purchase price of duly authorized, validly issued, fully paid and non-assessable Ordinary Shares together with (ii) contributions in cash to a special equity reserve account of the Company, by the delivery to the Investor of VWAP Purchase Notices as provided in Article III. Section 2.2 Closing; Closing Date. This Agreement shall become effective and binding (the “Closing”) upon (a) the delivery of counterpart signature pages of this Agreement and the Registration Rights Agreement executed by each of the parties hereto and thereto, (b) the receipt by the Investor of the Promissory Note, and (c) the delivery of all other documents, instruments and writings required to be delivered at the Closing, in each case as provided in Section 7.1, to the offices of Xxxxxxxx & Xxxxxxxx LLP, 0000 X Xxxxxx XX, Xxxxx 000, Xxxxxxxxxx, X.X. 00000, at 8:30 a.m., New York City time, on the date of this Agreement (the “Closing Date”). Section 2.3 Initial Public Announcements and Required Filings. The Company shall, within four (4) Trading Days of the date of this Agreement, file with the Commission a report on Form 6-K describing the material terms of the transactions contemplated by the Transaction Documents, including, without limitation, the issuance of the Commitment Shares to the Investor, and attaching as exhibits thereto copies of each of this Agreement, the Registration Rights Agreement and, if applicable, any press release issued by the Company disclosing the execution of this Agreement and the Registration Rights Agreement by the Company (including all exhibits thereto, the “Current Report”). The Company shall provide the Investor a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current Report with the Commission and shall give due consideration to all such comments. From and after the filing of the Current Report with the Commission, the Company shall have publicly disclosed all material, nonpublic information delivered to the Investor (or the Investor’s representatives or agents) by the Company, or any of its officers, directors, employees, agents or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The Investor covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in this Section 2.3, the Investor shall maintain the confidentiality of all disclosures made to it in connection with the transactions contemplated by the Transaction Documents (including the existence and terms of the transactions), except that the Investor may disclose the terms of such transactions (a) to its financial, accounting, legal and other advisors (provided that the Investor directs such Persons to maintain the confidentiality of such information), (b) as provided in this Agreement, (c) as required pursuant to applicable federal and state securities laws, rules and regulations, and the rules of the Trading Market or any Eligible Market or other stock exchange upon which the Company’s Ordinary Shares are listed or (d) to the extent such terms become generally available to the public not as a result of any action or inaction of Investor in violation of this Agreement. Not later than fifteen (15) calendar days following the Closing Date, the Company shall file a Form D with respect to the issuance and sale of the Securities in accordance with Regulation D and shall provide a copy thereof to the Investor promptly after such filing (the availability of which on the Commission’s XXXXX system shall
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3 constitute provision of such copy). The Company shall use its commercially reasonable efforts to prepare and, as soon as practicable, but in no event later than the applicable Filing Deadline, file with the Commission the Initial Registration Statement and any New Registration Statement covering only the resale by the Investor of the Registrable Securities in accordance with the Securities Act and the Registration Rights Agreement. At or before 5:30 p.m. (New York City time) on the second (2nd) Trading Day immediately following the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective amendment thereto), the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with resales of the Registrable Securities by the Investor pursuant to such Registration Statement (or post-effective amendment thereto). ARTICLE III PURCHASE TERMS Subject to the satisfaction of the conditions set forth in Article VII, the parties agree as follows: Section 3.1 VWAP Purchases. Upon the initial satisfaction of all of the conditions set forth in Section 7.2 (the “Commencement” and the date of initial satisfaction of all of such conditions, the “Commencement Date”) and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section 7.3 and in this Section 3.1, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a VWAP Purchase Notice, substantially in the form attached as Exhibit B hereto, on a VWAP Purchase Exercise Date, to purchase and subscribe for, as the case may be, the VWAP Purchase Share Amount set forth by the Company therein, not to exceed the applicable VWAP Purchase Maximum Amount, at the applicable VWAP Purchase Price therefor (as confirmed in the applicable VWAP Purchase Confirmation) in accordance with this Agreement (each such purchase, a “VWAP Purchase”). At or prior to 7:00 p.m., New York City time, on the second (2nd) Trading Day immediately following the applicable VWAP Purchase Exercise Date for each VWAP Purchase hereunder, the Investor shall provide to the Company a written confirmation for such VWAP Purchase setting forth the applicable VWAP Purchase Share Amount and the applicable VWAP Purchase Price (both on a per Share basis and the total aggregate VWAP Purchase Price to be paid by the Investor for such applicable VWAP Purchase Share Amount) with respect to such VWAP Purchase (each, a “VWAP Purchase Confirmation”), provided, that, in the event the applicable VWAP Purchase Confirmation is due on an Exempt Day, such VWAP Purchase Confirmation shall be sent by the Investor promptly on the following Trading Day that is not an Exempt Day. During the Investment Period, the Company may deliver a VWAP Purchase Notice to the Investor on any Trading Day selected by the Company as the VWAP Purchase Exercise Date for a VWAP Purchase, provided, that (i) the Company may not deliver a VWAP Purchase Notice if the Closing Sale Price of the Ordinary Shares on the Trading Day prior to the applicable VWAP Purchase Exercise Date is less than the Minimum Price, (ii) the Company may not deliver more than one VWAP Purchase Notice to the Investor on any single Trading Day, (iii) the Company may not deliver a VWAP Purchase Notice to the Investor on any Trading Day during the period commencing on the VWAP Purchase Exercise Date on which a prior VWAP Purchase Notice has previously been delivered by the Company to the Investor hereunder, and ending on the applicable VWAP Purchase Settlement Date (as defined below) (the “Quiet
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4 Period”); provided, that, the Investor may, in its sole discretion, waive the Quiet Period in the event the resale of the Registrable Securities by the Investor is registered pursuant to an effective Registration Statement on Form F-3 on the date of the applicable VWAP Purchase Notice, and (iv) all Shares subject to all prior VWAP Purchase Notices for VWAP Purchases that have been properly delivered by the Company to the Investor under this Agreement (as applicable) have theretofore been received by the Investor or its Broker-Dealer as DWAC Shares, prior to the Company’s delivery of such VWAP Purchase Notice to the Investor on such VWAP Purchase Exercise Date; provided, that, the Investor may, in its sole discretion, waive the condition in clause (iii) in the event the resale of the Registrable Securities by the Investor is registered pursuant to an effective Registration Statement on Form F-3 on the date of the applicable VWAP Purchase Notice. The Investor is obligated to accept each VWAP Purchase Notice properly delivered by the Company in accordance with the terms of and subject to the satisfaction of the conditions contained in this Agreement. If the Company delivers any VWAP Purchase Notice directing the Investor to purchase a VWAP Purchase Share Amount in excess of the applicable VWAP Purchase Maximum Amount that the Company is then permitted to include in such VWAP Purchase Notice, such VWAP Purchase Notice shall be void ab initio to the extent of the amount by which the VWAP Purchase Share Amount set forth in such VWAP Purchase Notice exceeds such applicable VWAP Purchase Maximum Amount, and the Investor shall have no obligation to purchase such excess Shares in respect of such VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the applicable VWAP Purchase Maximum Amount set forth in such VWAP Purchase Notice. Notwithstanding the foregoing (i) the Company shall not deliver any VWAP Purchase Notices to the Investor during the PEA Period and (ii) following the delivery of a VWAP Purchase Notice, the Company shall not raise additional capital, in the form of a public or private securities offering or otherwise, until the Trading Day following the applicable VWAP Purchase Settlement Date. Section 3.2 Settlement. For each VWAP Purchase, (1) on the third (3rd) Trading Day immediately following the applicable VWAP Purchase Exercise Date for such VWAP Purchase (the “VWAP Purchase Settlement Date”) not later than 12:00 p.m., New York City time (unless another time shall be agreed by the Investor and the Company), the Investor shall pay to the Company an amount in cash in Dollars by wire transfer in immediately available funds equal to the product of (i) the total VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase and (ii) the then Par Value of the Ordinary Shares (each such payment, a “Par Value Settlement Payment”), provided, that, in the event the applicable VWAP Purchase Settlement Date coincides with an Exempt Day, the applicable VWAP Purchase Settlement Date shall be the next Trading Day that is not an Exempt Day, (2) subject to the prior receipt by the Company of the applicable Par Value Settlement Payment in accordance with clause (1), not later than 1:00 p.m., New York City time, on the applicable VWAP Purchase Settlement Date, the Company shall cause the applicable VWAP Purchase Share Amount to be delivered to the Investor as DWAC Shares and (3) not later than 3:30 p.m., New York City time (unless another time shall be agreed to by the Investor and the Company) on the applicable VWAP Purchase Settlement Date, subject to the prior receipt of such DWAC Shares in accordance with clause (2), the Investor, which must hold at least one Ordinary Share, shall contribute in cash to a special equity reserve account, referred to as account 115, “apport en capitaux propres non rémunéré par des titres” of the Luxembourg standard chart of accounts (plan comptable normalisé) (the “Account 115”), of the Company an amount in cash in Dollars by wire transfer in immediately available funds equal to (x) the product of (i) the total VWAP Purchase Share Amount purchased by the Investor in such
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5 VWAP Purchase and (ii) the applicable VWAP Purchase Price minus (y) the applicable Par Value Settlement Payment, without issuance of any additional shares to the Investor in consideration for such contribution. Each of the Company and Investor acknowledge that Account 115 is part of the Company’s equity, and there will be no obligation for the Company to reimburse the amounts booked in Account 115, it being understood that the Account 115 forms a distributable reserve account which can be distributed at any time further to a valid decision of the Company in accordance with applicable laws to the extent that the Company has sufficient net assets to allow such distribution. If the Company or its transfer agent shall fail for any reason, other than a failure of the Investor or its Broker-Dealer to set up a DWAC and required instructions, to electronically transfer any Shares as DWAC Shares in respect of a VWAP Purchase prior to 2:00 p.m., New York City time, on the VWAP Purchase Settlement Date for such VWAP Purchase, and if on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) Ordinary Shares to deliver in satisfaction of a sale by the Investor of such Shares that the Investor anticipated receiving from the Company in respect of such VWAP Purchase, then the Company shall, within two (2) Trading Days after the Investor’s request and at the Company’s option, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased (the “Cover Price”), at which point the Company’s obligation to deliver such Shares as DWAC Shares (and the Investor’s obligation to purchase such Shares from the Company) shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such Shares as DWAC Shares and pay in cash or shares of Common Stock to the Investor in an amount equal to the excess (if any) of the Cover Price over the total purchase price paid by the Investor pursuant to this Agreement for all of the Shares to be purchased by the Investor in connection with such VWAP Purchase. The Company shall not issue any fraction of an Ordinary Share upon any VWAP Purchase. If the issuance would result in the issuance of a fraction of an Ordinary Share, the Company shall round such fraction of an Ordinary Share up or down to the nearest whole share. All payments made under this Agreement shall be made in lawful money of the United States of America by wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement is due on any day that is not a Trading Day, the same shall instead be due on the next succeeding day that is a Trading Day. Section 3.3 Compliance with Rules of Trading Market. The Company shall not issue or sell any Ordinary Shares pursuant to this Agreement if such issuance or sale would reasonably be expected to result in (i) a violation of the Securities Act or (ii) a breach of the rules of the Trading Market. The provisions of this Section 3.3 shall not be implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3 only if necessary to ensure compliance with the Securities Act and the applicable rules of the Trading Market. Section 3.4 Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or sell, and the Investor shall not purchase or acquire, any Ordinary Shares under this Agreement which, when aggregated with all other Ordinary Shares then beneficially owned by the Investor and its Affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor of more than 4.99% of the outstanding Ordinary Shares (the “Beneficial Ownership Limitation”), provided, that, the Investor may, in its sole discretion, elect to increase the Beneficial Ownership Limitation to permit the Investor to
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10 VWAP Purchase Notice), as well as actions and payments by the Investor required in connection with any issuance and sale of Shares to the Investor, the execution, delivery and performance by the Company of each of the Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action, and no further consent or authorization of the Company, its Board of Directors or its shareholders is required. Each of the Transaction Documents to which the Company is a party has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application (including any limitation of equitable remedies). Neither the Company nor any Subsidiary or their respective properties or assets has immunity under the laws of the Grand Duchy of Luxembourg, or U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of the Grand Duchy of Luxembourg, U.S. federal or New York state court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other matter under or arising out of or in connection with this Agreement; and, to the extent that the Company or any Subsidiary or their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated by this Agreement, may at any time be commenced, the Company has, pursuant to Section 10.11 of this Agreement, waived, and it will waive, or will cause its subsidiaries to waive, such right to the extent permitted by law. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Company based upon this Agreement would be declared, as Luxembourg case-law currently stands, enforceable against the Company by the courts of the Grand Duchy of Luxembourg, pursuant to and subject to the conditions set out under, an exequatur procedure, without reconsideration or reexamination of the merits. Section 5.3 Capitalization. The authorized share capital of the Company and the shares thereof issued and outstanding were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and non-assessable. Except as set forth in the Commission Documents, this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of authorized share capital of the Company are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except
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13 Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable. There are no comments provided to the Company by the Commission’s staff relating to any of the Commission Documents filed with or furnished to the Commission as of the applicable date or time this representation is being made under Article VII hereof that remain outstanding or unresolved. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. (b) The financial statements of the Company included in the Commission Documents filed with or furnished to the Commission as of the applicable date or time this representation is being made under Article VII hereof, together with the related notes and schedules thereto, comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act in effect as of the time of filing and present fairly in all material respects the financial condition of the Company, together with its consolidated Subsidiaries, as of the dates shown and its results of operations and cash flows for the periods shown, and such consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (the “IFRS”), as issued by the International Accounting Standards Board and the related interpretations issued by the IFRS Interpretations Committee and applied on a consistent basis throughout the periods covered thereby except for any normal year-end adjustments in the Company’s quarterly financial statements. Any pro forma financial statements and pro forma data included or incorporated by reference in the Commission Documents comply with the applicable requirements of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation of any such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data. The other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the Commission Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Commission Documents that are not included or incorporated by reference as required. All disclosures contained or incorporated by reference in the Commission Documents, if any, regarding “non-IFRS financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The Company and its Subsidiaries do not have any material liabilities or obligations, direct or contingent, not described in the Commission Documents which are required to be described in the Commission Documents. (c) Except as disclosed in the Commission Documents, from and after March 24, 2021, the Company and each of its Subsidiaries have maintained and continue to maintain a system of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d- 15 under the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
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48 If to the Company: Arrival 00x xxx xxx Xxxxxxxx X-0000 Xxxxxx Xxxxx-Xxxxx xx Xxxxxxxxxx Attention: Xxxx Xxxxxxx Email: xxx@xxxxxxx.xxx With a copy (which shall not constitute notice) to: Linklaters LLP 0000 Xxx. xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxx Email: xxxxxxx.xxxxx@xxxxxxxxxx.xxx If to the Investor: Westwood Capital Group LLC 00 X. Xxxxxxx XXX, Xxxxx 000 Xxxxxx Xxxxxx, XX 00000 Email: xxxxxxxx@xxxxxxxxxxx.xxx Attention: Xxx Xxxxxxx With a copy (which shall not constitute notice) to: Xxxxxxxx & Xxxxxxxx LLP 0000 X Xxxxxx XX, Xxxxx 000 Xxxxxxxxxx, XX 00000 Telephone Number: (000) 000-0000 Email: XxxxXxxxxxxx@xxxx.xxx Attention: Xxxxxx X. Xxxxxxxx Either party hereto may from time to time change its address for notices by giving at least five (5) days’ advance written notice of such changed address to the other party hereto. Section 10.5 Waivers. No provision of this Agreement may be waived by the parties from and after the date that is one (1) Trading Day immediately preceding the date on which the Initial Registration Statement is initially filed with the Commission. Subject to the immediately preceding sentence, no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof,
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written. ARRIVAL: By: Name: Xxxx Xxxxxxx Title: Chief Financial Officer WESTWOOD CAPITAL GROUP LLC: By: Name: Xxx Xxxxxxx Title: Managing Member
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written. By: WESTWOOD CAPITAL GROUP LLC: By: Name: ARRIVAL Name: Xxx Xxxxxxx Title: Managing Member Title:
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I-1 ANNEX I TO THE ORDINARY SHARE PURCHASE AGREEMENT DEFINITIONS “Accountant” shall have the meaning assigned to such term in Section 5.7(e). “Action” means any action, lawsuit, complaint, claim, petition, suit, audit, examination, assessment, arbitration, mediation or inquiry, or any proceeding or investigation, by or before any Governmental Authority. “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a Person, as such terms are used in and construed under Rule 144. “Agreement” shall have the meaning assigned to such term in the preamble of this Agreement. “Bankruptcy Law” means Title 11, U.S. Code, or any similar U.S. federal or state law for the relief of debtors, Part IX of the Insolvency Xxx 0000, as amended, or the Insolvency Rules 1986, as amended, or any similar English law for the relief of debtors, Articles 437 ff. of the Luxembourg Commercial Code, as amended, or any similar Luxembourg law for the relief of debtors and/or the European Insolvency Regulation of 2002, as amended, or any similar European Union regulation governing the relief of debtors. “Beneficial Ownership Limitation” shall have the meaning assigned to such term in Section 3.4. “Bloomberg” means Bloomberg, L.P. (or other reputable market data source chosen by the Investor prior to Commencement). “Bring Down Comfort Letter” shall have the meaning assigned to such term in Section 7.3(x). “Bring Down Opinion” shall have the meaning assigned to such term in Section 6.15. “Broker-Dealer” shall have the meaning assigned to such term in Section 6.13. “Closing” shall have the meaning assigned to such term in Section 2.2. “Closing Date” shall have the meaning assigned to such term in Section 2.2. “Closing Sale Price” means, for the Ordinary Shares as of any date, the last closing trade price for the Ordinary Shares on the Trading Market (or if the Ordinary Shares are then traded on an Eligible Market, on such Eligible Market), as reported by Bloomberg, or, if the Trading Market (or such Eligible Market, as applicable) begins to operate on an extended hours basis and does not designate the closing trade price for the Ordinary Shares, then the last trade price for the Ordinary Shares prior to 4:00 p.m., New York City time, as reported by Bloomberg, or, if the foregoing do not apply, the last trade price for the Ordinary Shares in the over-the-counter market on the
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I-2 electronic bulletin board for the Ordinary Shares as reported by Bloomberg, or, if no last trade price is reported for the Ordinary Shares by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported by OTC Markets Group Inc. All such determinations shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period. “Code” shall have the meaning assigned to such term in Section 5.25. “Commencement” shall have the meaning assigned to such term in Section 3.1. “Commencement Date” shall have the meaning assigned to such term in Section 3.1. “Commencement Irrevocable Transfer Agent Instructions” shall have the meaning assigned to such term in Section 10.1(iv). “Commission” means the U.S. Securities and Exchange Commission or any successor entity. “Commission Documents” shall mean (i) all reports, schedules, registrations, forms, statements, information and other documents filed with or furnished to the Commission by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act since March 24, 2021 and which hereafter shall be filed with or furnished to the Commission by the Company, including, without limitation, the Current Report, (ii) each Registration Statement, as the same may be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (iii) all information contained in such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein. “Commitment Shares” means a number of duly authorized, validly issued, fully paid and non-assessable Ordinary Shares equal to (i) $3,000,000, divided by (ii) the lower of (A) the Closing Sale Price of the Ordinary Shares on the Nasdaq on the date hereof 1 , which price shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction, and (B) the Closing Sale Price of the Ordinary Shares on the Nasdaq on the date immediately prior to the date that the Initial Registration Statement is filed with the Commission, provided that in any event item (ii) shall not be less than the then Par Value. “Company” shall have the meaning assigned to such term in the preamble of this Agreement. “Compliance Certificate” shall have the meaning assigned to such term in Section 7.2(ii). “Confidential Data” shall have the meaning assigned to such term in Section 5.43. “Cover Price” shall have the meaning assigned to such term in Section 3.2. “Current Report” shall have the meaning assigned to such term in Section 2.3.
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I-3 “Custodian” shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. “Damages” shall have the meaning assigned to such term in Section 9.1. “Disclosure Schedule” shall have the meaning assigned to such term in the preamble to Article V. “Disqualification Event” shall have the meaning assigned to such term in Section 5.40. “DTC” means The Depository Trust Company, a Subsidiary of The Depository Trust & Clearing Corporation, or any successor thereto. “DWAC” shall have the meaning assigned to such term in Section 5.34. “DWAC Shares” means Ordinary Shares issued pursuant to this Agreement that are (i) issued in electronic form, (ii) freely tradable and transferable and without restriction on resale and without stop transfer instructions maintained against the transfer thereof, and (iii) timely credited by the Company to the Investor’s or its designee’s specified Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter adopted by DTC performing substantially the same function. “XXXXX” means the Commission’s Electronic Data Gathering, Analysis and Retrieval System. “Effective Date” means, with respect to the Initial Registration Statement filed pursuant to Section 2(a) of the Registration Rights Agreement (or any post-effective amendment thereto) or any New Registration Statement filed pursuant to Section 2(c) of the Registration Rights Agreement (or any post-effective amendment thereto), as applicable, the date on which the Initial Registration Statement (or any post-effective amendment thereto) or any New Registration Statement (or any post-effective amendment thereto) is declared effective by the Commission. “Eligible Market” means the New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Capital Market, the NYSE American, or the NYSE Arca (or any nationally recognized successor to any of the foregoing). “Employee Plan” shall have the meaning assigned to such term in Section 5.25. “Environmental Laws” shall have the meaning assigned to such term in Section 5.19. “ERISA” shall have the meaning assigned to such term in Section 5.25. “ERISA Affiliate” shall have the meaning assigned to such term in Section 5.25. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
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I-4 “Exempt Day” means any of the following religious holidays or weekly Sabbath (beginning at sunset each Friday evening and ending at sunset the following Saturday evening): Purim, Passover, Passover Eve, Shavuot, Xxxxx B’Av, Rosh Hashanah, Yom Kippur, Sukkot or Shemini Atzeret and Simchat Torah. “Exempt Issuance” means the issuance of (a) Ordinary Shares, options or other equity incentive awards to employees, officers, directors or vendors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Company’s Board of Directors or a majority of the members of a committee of the Board of Directors established for such purpose; (b) (1) any Securities issued to the Investor pursuant to this Agreement, (2) any securities issued upon the exercise or exchange of or conversion of any Ordinary Shares or Ordinary Share Equivalents held by the Investor or any of its Affiliates at any time, (3) any Ordinary Shares issued in an “at-the-market” offering from time to time, provided that the Company shall only engage in one “at-the-market” continuous offering at any one time in an aggregate principal amount of Ordinary Shares up to $300,000,000, (4) any Ordinary Shares issued pursuant to the terms of that certain Subscription Agreement, dated as of February 21, 2023, by and between the Company and Antara Capital Master Fund LP, up to an aggregate amount of $25,000,000 in Ordinary Shares, or (5) any securities issued upon the exercise or exchange of or conversion of any Ordinary Share Equivalents issued and outstanding on the Closing Date, provided that such securities referred to in this clause (3) have not been amended since the Closing Date to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, or (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Company’s Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. “FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, as amended. “Filing Deadline” shall have the meaning assigned to such term in the Registration Rights Agreement. “FINRA” means the Financial Industry Regulatory Authority. “Fundamental Transaction” means that (i) the Company shall, directly or indirectly, in one or more related transactions, (1) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Person, with the result that the holders of the Company’s capital stock immediately prior to such consolidation or merger together beneficially own less than 50% of the outstanding voting power of the surviving or resulting corporation, or (2) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company to another Person, or (3) take action to facilitate a purchase, tender or exchange offer by another Person that is accepted by the holders of more than 50% of
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I-5 the outstanding Ordinary Shares (excluding any Ordinary Shares held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding Ordinary Shares (not including any Ordinary Shares held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (5) reorganize, recapitalize or reclassify its Ordinary Shares, or (ii) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares. “GDPR” shall have the meaning assigned to such term in Section 5.43. “Governmental Authority” means any federal, state, provincial, municipal, local, international, supranational or foreign government, governmental authority, regulatory or administrative agency (which for the purposes of this Agreement shall include the Commission), governmental commission, department, board, bureau, agency, court, arbitral tribunal, securities exchange or similar body or instrumentality thereof. “IFRS” shall have the meaning assigned to such term in Section 5.7(b). “Initial Comfort Letter” shall have the meaning assigned to such term in Section 7.2(xvii). “Initial Registration Statement” shall have the meaning assigned to such term in the Registration Rights Agreement. “Intellectual Property Rights” shall have the meaning assigned to such term in Section 5.18(b). “Investment Period” means the period commencing on the Commencement Date and expiring on the date this Agreement is terminated pursuant to Article VIII. “Investor” shall have the meaning assigned to such term in the preamble of this Agreement. “Investor Expense Reimbursement” shall have the meaning assigned to such term in Section 10.1(i). “Investor Party” shall have the meaning assigned to such term in Section 9.1. “Issuer Covered Person” shall have the meaning assigned to such term in Section 5.40. “IT Systems” shall have the meaning assigned to such term in Section 5.43.
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I-6 “Knowledge” means the actual knowledge of any of the Company’s Chief Executive Officer or its Chief Financial Officer and Principal Financial and Accounting officer, in each case after reasonable inquiry. “Material Adverse Effect” means (i) any condition, occurrence, state of facts or event having, or insofar as reasonably can be foreseen would likely have, any material adverse effect on the legality, validity or enforceability of the Transaction Documents or the transactions contemplated thereby, (ii) any condition, occurrence, state of facts or event having, or insofar as reasonably can be foreseen would likely have, any effect on the business, operations, properties or financial condition of the Company that is material and adverse to the Company and its Subsidiaries, taken as a whole, and/or (iii) any condition, occurrence, state of facts or event that would, or insofar as reasonably can be foreseen would likely, prohibit or otherwise materially interfere with or delay the ability of the Company to perform any of its obligations under any of the Transaction Documents to which it is a party; provided, however, that with respect to clause (ii) no condition, occurrence, state of facts or event exclusively and directly resulting from, relating to or arising out of the following, individually or in the aggregate, shall be taken into account in determining whether a Material Adverse Effect has occurred or insofar as reasonably can be foreseen would likely occur: (a) changes in conditions in the U.S. or global capital, credit or financial markets generally, including changes in the availability of capital or currency exchange rates, provided such changes shall not have affected the Company in a materially disproportionate manner as compared to other similarly situated companies; (b) changes generally affecting the industries in which the Company and its Subsidiaries operate, provided such changes shall not have affected the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner as compared to other similarly situated companies; (c) any effect of the announcement of, or the consummation of the transactions contemplated by, this Agreement and the other Transaction Documents on the Company’s relationships, contractual or otherwise, with customers, suppliers, vendors, bank lenders, strategic venture partners or employees; (d) changes arising in connection with earthquakes, pandemics, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such pandemic, hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof; (e) any action taken by the Investor with respect to the transactions contemplated by this Agreement; and (f) the effect of any changes in applicable laws or accounting rules, provided such changes shall not have affected the Company in a materially disproportionate manner as compared to other similarly situated companies. “Material Agreements” shall have the meaning assigned to such term in Section 5.20. “Maximum Par Value” shall have the meaning assigned to such term in Section 7.2(xviii). “Minimum Price” means $0.10, which shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization, recapitalization, non-cash dividend, stock split or other similar transaction, the “Minimum Price” shall mean the higher of (i) such adjusted price and (ii) $0.10 (which shall not be subjected to adjustment pursuant to Section 10.8). “Money Laundering Laws” shall have the meaning assigned to such term in Section 5.37.
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I-7 “New Registration Statement” shall have the meaning assigned to such term in the Registration Rights Agreement. “Notice of Effectiveness” shall have the meaning assigned to such term in Section 10.1(iv). “OFAC” means the Office of Foreign Assets Control. “Ordinary Shares” has the meaning given in the recitals. “Ordinary Share Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares. “Organizational Document” means the Company’s Amended and Restated Articles of Association, filed with the Luxembourg Trade and Companies Register. “Par Value” means the amount obtained by dividing (i) the Company’s issued capital by (ii) the number of issued shares by the Company. “Par Value Settlement Payment” shall have the meaning assigned to such term in Section 3.2. “Promissory Note” means a promissory note dated on the date hereof, in the form attached as Exhibit E hereto, in an aggregate amount of $3,000,000 issued by the Company to the Investor, for value received under this Agreement, in the context of the issuance by the Company of the Commitment Shares, with the amount due under such promissory note being set-off against the subscription price of the Commitment Shares, by the Investor, on the date of their issuance as provided by this Agreement. “PCOAB” shall have the meaning assigned to such term in Section 7.2(xvii). “PEA Period” means the period commencing at 9:30 a.m., New York City time, on the fifth (5th) Trading Day immediately prior to the filing of any post-effective amendment to the Initial Registration Statement or any New Registration Statement, and ending at 9:30 a.m., New York City time, on the Trading Day immediately following, the Effective Date of such post- effective amendment. “Person” means any person or entity, whether a natural person, trustee, corporation, partnership, limited partnership, limited liability company, trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority. “Personal Data” shall have the meaning assigned to such term in Section 5.43. “Privacy Laws” shall have the meaning assigned to such term in Section 5.43.
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I-8 “Prospectus” shall have the meaning assigned to such term in the Registration Rights Agreement. “Prospectus Supplement” shall have the meaning assigned to such term in the Registration Rights Agreement. “Quiet Period” shall have the meaning assigned to such term in Section 3.1. “Registrable Securities” shall have the meaning assigned to such term in the Registration Rights Agreement. “Registration Rights Agreement” shall have the meaning assigned to such term in the recitals of this Agreement. “Registration Statement” shall have the meaning assigned to such term in the Registration Rights Agreement. “Regulation D” shall have the meaning assigned to such term in the recitals of this Agreement. “Restricted Period” shall have the meaning assigned to such term in Section 6.9. “Restricted Person” and “Restricted Persons” shall have the meaning assigned to such term in Section 6.9. “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect. “Xxxxxxxx-Xxxxx Act” shall have the meaning assigned to such term in Section 5.7(e). “Sanction Country” shall have the meaning assigned to such term in Section 5.38. “Sanction Lists” shall have the meaning assigned to such term in Section 5.38. “Section 4(a)(2)” shall have the meaning assigned to such term in the recitals of this Agreement. “Securities” means collectively, the Shares and the Commitment Shares. “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder. “Shareholder Approval” shall have the meaning assigned to such term in Section 6.16. “Shareholder Approval Date” shall have the meaning assigned to such term in Section 6.16. “Shareholder Meeting” shall have the meaning assigned to such term in Section 6.16.
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I-9 “Shareholder Meeting Deadline” shall have the meaning assigned to such term in Section 6.16. “Shares” shall mean the Ordinary Shares that are and/or may be purchased by the Investor under this Agreement pursuant to one or more VWAP Purchase Notices, but not including the Commitment Shares. “Short Sales” shall mean “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act. “Subsidiary” shall mean any corporation or other entity of which at least a majority of the securities or other ownership interest having ordinary voting power for the election of directors or other persons performing similar functions are at the time owned directly or indirectly by the Company and/or any of its other Subsidiaries. “Tax Return” means any return, declaration, report, statement, information statement or other document filed or required to be filed with any Governmental Authority with respect to Taxes, including any claims for refunds of Taxes, any information returns and any amendments or supplements of any of the foregoing. “Taxes” means all federal, state, local, foreign or other taxes imposed by any Governmental Authority, including all income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, ad valorem, value added, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, alternative or add-on minimum, or estimated taxes, and including any interest, penalty, or addition thereto. “Total Commitment” shall have the meaning assigned to such term in Section 2.1. “Trading Day” shall mean a full trading day (beginning at 9:30:01 a.m., New York City time, and ending at 4:00 p.m., New York City time) on the Trading Market or, if the Ordinary Shares are then listed on an Eligible Market, on such Eligible Market; provided, that, a “Trading Day” may not be any day on which commercial banks are not open for ordinary banking business in the European Union. “Trading Market” means The Nasdaq Global Select Market (or any nationally recognized successor thereto). If the Company’s Ordinary Shares become listed on an Eligible Market and cease to be listed on the Trading Market, the Eligible Market upon which the Company’s Ordinary Shares become listed shall be the Trading Market. “Transaction Documents” means, collectively, this Agreement (as qualified by the Disclosure Schedule) and the exhibits hereto, the Registration Rights Agreement and each of the other agreements, documents, certificates and instruments entered into or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any equity or debt securities that are convertible into, exchangeable or exercisable for, or include
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I-10 the right to receive additional Ordinary Shares or Ordinary Share Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Ordinary Shares at any time after the initial issuance of such equity or debt securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares (including, without limitation, any “full ratchet” or “weighted average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), (ii) issues or sells any equity or debt securities, including without limitation, Ordinary Shares or Ordinary Share Equivalents, either (A) at a price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) that are subject to or contain any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right, other than in connection with a Fundamental Transaction) that provides for the issuance of additional equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit” (other than with the Investor) or “at the market offering” or other continuous offering or similar offering of Ordinary Shares or Ordinary Share Equivalents, whereby the Company may sell Ordinary Shares or Ordinary Share Equivalents at a future determined price. “VWAP” means, for the Ordinary Shares as of any Trading Day, the dollar volume- weighted average price for the Ordinary Shares on the Trading Market (or, if the Ordinary Shares are then listed on an Eligible Market, on such Eligible Market) during the period beginning at the official open (or commencement) of trading on the Trading Market (or on such Eligible Market, as applicable) on such Trading Day, and ending at the official close of trading on the Trading Market (or on such Eligible Market, as applicable) on such Trading Day, as reported by Bloomberg through its “AQR” function. All such determinations shall be appropriately adjusted by the Company for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period. “VWAP Purchase” shall have the meaning assigned to such term in Section 3.1. “VWAP Purchase Condition Satisfaction Time” means, with respect to any VWAP Purchase, 7:30 a.m., New York City time, on the applicable VWAP Purchase Exercise Date for such VWAP Purchase. “VWAP Purchase Confirmation” shall have the meaning assigned to such term in Section 3.1. “VWAP Purchase Exercise Date” means, with respect to any VWAP Purchase, the Trading Day on which the Investor receives a valid VWAP Purchase Notice for such VWAP Purchase in accordance with this Agreement; provided, that, if such VWAP Purchase Notice is received after 7:30 a.m., New York City time, on any Trading Day, it shall be deemed to have been
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I-11 received at 7:30 a.m., New York City time, on the immediately following Trading Day; provided, further, that the Company shall not deliver, or cause Investor to receive, a VWAP Purchase Notice to the Investor on an Exempt Day (or within three (3) hours of sunset on the day prior to an Exempt Day). “VWAP Purchase Maximum Amount” means: (1) with respect to any VWAP Purchase that is designated as a “Forward VWAP Purchase” in the applicable VWAP Purchase Notice, a number of Ordinary Shares equal to the lesser of (i) the product obtained by multiplying (A) the average daily trading volume in the Ordinary Shares on the Trading Market (or Eligible Market, as applicable) during the five (5) Trading Days immediately preceding the applicable VWAP Purchase Exercise Date for such VWAP Purchase and (B) 0.300 and (ii) the quotient obtained by dividing (A) $25,000,000 by (B) the VWAP of the Ordinary Shares on the Trading Market (or Eligible Market, as applicable) on the Trading Day immediately preceding the applicable VWAP Purchase Exercise Date for such VWAP Purchase; provided, that the Investor and the Company may mutually agree to waive the VWAP Purchase Maximum Amount with respect to any VWAP Purchase that is designated as a “Forward VWAP Purchase” in the applicable VWAP Purchase Notice in the event the resale of the Registrable Securities by the Investor is registered pursuant to an effective Registration Statement on Form F-3 on the date of the applicable VWAP Purchase Notice; or (2) with respect to any VWAP Purchase that is designated as an “Alternative VWAP Purchase” in the applicable VWAP Purchase Notice, a number of Ordinary Shares equal to the lesser of (i) the product obtained by multiplying (A) the average daily trading volume in the Ordinary Shares on the Trading Market (or Eligible Market, as applicable) during the five (5) Trading Days immediately preceding the applicable VWAP Purchase Exercise Date for such VWAP Purchase and (B) 0.450, and (ii) the quotient obtained by dividing (A) $30,000,000 by (B) the VWAP of the Ordinary Shares on the Trading Market (or Eligible Market, as applicable) on the Trading Day immediately preceding the applicable VWAP Purchase Exercise Date for such VWAP Purchase; provided, that any VWAP Purchase delivered prior to the six-month anniversary of the initial Effective Date of the Initial Registration Statement shall automatically be deemed an “Alternative VWAP Purchase”. “VWAP Purchase Notice” means, with respect to a VWAP Purchase made pursuant to Section 3.1, an irrevocable written notice delivered by the Company to the Investor on a VWAP Purchase Exercise Date directing the Investor to purchase a VWAP Purchase Share Amount (such specified VWAP Purchase Share Amount subject to adjustment as set forth in Section 3.1 as necessary to give effect to the applicable VWAP Purchase Maximum Amount), at the VWAP Purchase Price therefor in accordance with this Agreement. “VWAP Purchase Price” means: (1) with respect to any VWAP Purchase that is designated as a “Forward VWAP Purchase” in the applicable VWAP Purchase Notice, the purchase price per Ordinary Share to be
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I-12 purchased by the Investor in such VWAP Purchase, which shall equal the product of (A) the average daily VWAP during the three (3) consecutive Trading Days beginning on the applicable VWAP Purchase Exercise Date for such VWAP Purchase, multiplied by (B) 0.970; or (2) with respect to any VWAP Purchase that is designated as an “Alternative VWAP Purchase” in the applicable VWAP Purchase Notice, the purchase price per Ordinary Share to be purchased by the Investor in such VWAP Purchase, which shall equal the product of (A) the lowest daily VWAP during the three (3) consecutive Trading Days beginning on the applicable VWAP Purchase Exercise Date for such VWAP Purchase, multiplied by (B) 0.950; provided, that the Company will not undertake any reorganization, recapitalization, non- cash dividend, stock split, reverse stock split or other similar transaction during the period between a VWAP Purchase Exercise Date and a VWAP Purchase Settlement Date; and provided also, that any VWAP Purchase delivered prior to the six-month anniversary of the initial Effective Date of the Initial Registration Statement shall automatically be deemed an “Alternative VWAP Purchase”. “VWAP Purchase Settlement Date” shall have the meaning assigned to such term in Section 3.2. “VWAP Purchase Share Amount” means, with respect to any VWAP Purchase, the number of Shares specified by the Company in the applicable VWAP Purchase Notice, which number of Shares shall not exceed the applicable VWAP Purchase Maximum Amount.