The Standby Equity Purchase Agreement is a sophisticated financing instrument used by companies seeking flexible access to equity capital under Austrian law. This document is typically employed when a company wants to secure a reliable source of future funding without immediate dilution of existing shareholders. The agreement provides the company with the option, but not the obligation, to sell shares to the investor over a specified period, subject to agreed-upon pricing mechanisms and volume limitations. It must comply with Austrian corporate law, particularly the Stock Corporation Act (Aktiengesetz) and Capital Market Act (Kapitalmarktgesetz), as well as relevant EU regulations. The document includes comprehensive details about purchase mechanics, pricing formulas, regulatory compliance requirements, representations and warranties, and conditions for drawdowns.
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1. Parties: Identification of the company and the investor
2. Background: Context of the agreement and basic transaction structure
3. Definitions: Key terms used throughout the agreement
4. Purchase Commitment: Basic terms of the investor's commitment to purchase shares
5. Commitment Period: Duration of the investor's commitment and any extension provisions
6. Pricing Mechanism: Formula for determining the purchase price of shares
7. Drawdown Mechanics: Process for the company to request share purchases
8. Conditions Precedent: Conditions that must be satisfied before purchases can occur
9. Representations and Warranties: Statements of fact by both parties
10. Covenants: Ongoing obligations of both parties
11. Closing Procedures: Process for completing each share purchase
12. Termination: Circumstances under which the agreement can be terminated
13. Indemnification: Obligations to compensate for losses or breaches
14. Confidentiality: Protection of confidential information
15. Notices: Communication procedures between parties
16. Governing Law and Jurisdiction: Austrian law provisions and dispute resolution
17. General Provisions: Standard boilerplate clauses
1. Registration Rights: Rights of the investor to require registration of shares for public trading, included if the company is or may become publicly traded
2. Market Making Restrictions: Restrictions on the investor's trading activities, included if required by market regulations
3. Shareholder Approval: Provisions regarding obtaining shareholder approval, included if required under corporate documents or law
4. Anti-Dilution Protection: Protection for the investor against dilutive events, included if negotiated
5. Minimum Price Protection: Floor price provisions for share purchases, included if negotiated
6. Financial Advisor Provisions: Terms related to financial advisors, included if advisors are involved in the transaction
1. Calculation of Purchase Price: Detailed formula and examples of price calculations
2. Form of Drawdown Notice: Standard form for the company to request share purchases
3. Conditions Precedent Documents: List of required documents and certificates
4. Company Information: Key corporate and capital structure information
5. Form of Compliance Certificate: Standard form for confirming compliance with conditions
6. Restricted Jurisdictions: List of jurisdictions where shares cannot be sold
7. Form of Legal Opinions: Required format for legal opinions
8. Trading Parameters: Specific rules and restrictions on trading activities
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