Based on a set of open source angel investment templates created by Zheng Huifen and Bernard Leong for the entrepreneurial ecosystem specific to Singa...
Agreement between shareholders of a companyFull description
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Share Purchase Agreement TemplateFull description
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Shareholder agreementFull description
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agreementFull description
agreementFull description
agreementFull description
agreementFull description
agreementFull description
shareholders' equityFull description
agreementFull description
agreementFull description
agreementFull description
agreementFull description
agreementFull description
agreementFull description
agreementFull description
DATED THIS THE DAY OF
Between
THE SEVERAL PERSONS NAMED IN SCHEDULE 1 (the “Founders”) And THE SEVERAL PERSONS NAMED IN SCHEDULE 2 (the “Investors”) And PTE LTD (the “Company”)
SHAREHOLDERS’ AGREEMENT relating to PTE LTD
THIS AGREEMENT is made on the day of BETWEEN:1.
THE PERSONS WHOSE NAMES ARE SET OUT IN SCHEDULE 1 (collectively the "Founders" and individually a "Founder");
2.
THE PERSONS WHOSE NAMES ARE SET OUT IN SCHEDULE 2 (collectively the "Investors" and individually an “Investor”); AND
3.
, a company incorporated in Singapore with its registered address at (the "Company").
WHEREAS:(A)
The Company is a private company limited by shares incorporated in Singapore under the Companies Act (Cap. 50) and has at the date of this Agreement an authorised share capital of comprising ordinary shares of each ("Shares").
(B)
Pursuant to the Share Purchase Agreement (defined below), the Investors agreed to subscribe for, and the Company agreed to allot and issue to the Investors, inter alia, an aggregate of Shares.
(C)
As at the date hereof, the Investors are the registered owners of an aggregate of Shares in the proportions set out opposite their respective names in Schedule 2. As at the date hereof, the Founders are the registered owners, free from all charges, liens and other encumbrances, of the remaining issued capital of the Company of Shares in the proportions set out opposite their respective names in Schedule 1.
(D)
The parties hereto have agreed to enter into this Agreement to give effect to their intentions and to regulate their relations inter se and in the conduct of the business and affairs of the Company.
IT IS HEREBY AGREED as follows:1.
DEFINITIONS AND INTERPRETATION In this Agreement, unless the subject or context otherwise requires:-
1.1
the following words and expressions shall have the following meanings:-
"Act" means the Companies Act (Cap. 50) of Singapore; "Articles" means the new Articles of Association of the Company duly amended to the satisfaction of the Investors to reflect the terms of this Agreement (as from time to time amended, modified or supplemented); "Auditors" means the auditors from time to time of the Company and who are approved by the Investors; "Board" means the board of directors for the time being of the Company; “Business Day” means a day (other than Saturday and Sunday) on which commercial banks are open for business in Singapore. "Connected Companies" means collectively, any companies which are and may from time to time be connected with the Company, and for these purposes, a company (the "Connected Company") shall also be deemed to be connected with the Company if:(a)
any shareholder or director of the Company or any parent, uncle, aunt, grandparent, spouse, sibling or children of such shareholder or director (hereinafter “Connected Persons”) holds the position of shareholder (whether legal or beneficial) or director in the Connected Company or directly or indirectly controls the Connected Company PROVIDED THAT for the purposes of this definition, a company shall not be deemed to be a Connected Company by reason only of any of the aforementioned persons being interested in the shares of such company if such interest is in shares representing less than 5% of the issued share capital of the company and such company is listed on a Recognised Stock Exchange; or
(b)
the Connected Company directly or indirectly controls the Company. (The Connected Company shall be deemed to control the Company if it has an interest of 25% or more in the shares of the Company),
and, "Connected Company" means, individually, any of them; "Directors" means the directors for the time being of the Company and "Director" means any one of them; “Investor Directors” means the Director(s) appointed by the Investors pursuant to Clause 2.1; “Other Shareholders” means all the Shareholders save for the Investors; "Recognised Stock Exchange” means any recognised stock exchange as declared from time to time by the Monetary Authority of Singapore for the purpose of the Security Industry Regulations, 1986 promulgated under the Securities Industry Act (Cap. 289) or such other stock exchange as may be agreed between the parties; "Shareholders" means the Investors, the Founders and any other person holding Shares who shall have executed a deed of ratification and accession pursuant to Clause 5.8;
“Share Purchase Agreement” means the share purchase agreement dated the date hereof and entered into between the Founders, the Investors and the Company for the purchase of certain Shares in the Company by the Investors; and “subsidiary” shall have the meaning ascribed to it in the Act. 1.2
any reference to a statutory provision shall include such provision and any regulations made in pursuance thereof as from time to time modified or re-enacted whether before or after the date of this Agreement so far as such modification or re-enactment applies or is capable of applying to any transactions entered into hereunder or in connection with this Agreement;
1.3
references to Clauses and the Schedules are to clauses of and the schedules to this Agreement;
1.4
the headings in this Agreement are for convenience only and shall not affect the interpretation hereof;
1.5
capitalised words and expressions not defined in this Agreement shall bear the same meanings ascribed to them in the Investment Agreement unless the context otherwise requires;
1.6
unless the context otherwise requires, references to the singular number shall include references to the plural number and vice versa and references to natural persons shall include bodies corporate and the use of any gender shall include all genders; and
1.7
references to "S$" and "Dollars" are to the lawful currency of Singapore.
2.
MANAGEMENT OF THE COMPANY
2.1
Constitution of Board of the Company: Each of the parties hereto agrees that the Board shall at all times consist of a minimum of three Directors, of which the Founders shall be entitled to appoint two Directors. The Investors shall be entitled to appoint one (1) Director (“Investor Director”).
2.2
Removal of Directors: The right of appointment by the Investors under Clause 2.1 shall include the right to substitute such Directors appointed by them respectively from office at any time, and the right to determine from time to time the period for which such persons shall hold office as Investor Directors.
2.3
Manner of appointment and removal: Any appointment or removal of the Investor Director pursuant to Clauses 2.1 and 2.2 shall be made in writing and be signed by or on behalf of all the Investors and shall be delivered to the registered office for the time being of the Company. In order to give effect to the provisions of this Clause 2, each of the Shareholders shall exercise all his or its voting rights for the time being in the Company to enable such Director to be appointed and to prevent the passing of any resolutions giving effect to the removal from office as Directors any person so appointed.
2.4
Alternate Director: A Director shall be entitled at any time and from time to time to appoint any person to act as his alternate and to terminate the appointment of such person and in that connection the provisions of the Articles shall be complied with. Such alternate director shall be entitled while holding office as such to receive notices of meetings of the Board and to attend and vote as a Director at any such meetings at which the Director appointing him is not present and generally to exercise all the powers, rights, duties and authorities and to perform all functions of his appointor. Further, such alternate director shall be entitled to exercise the vote of the Director appointing him at any meetings of the Board and if
such alternate director represents more than one Director, such alternate director shall be entitled to one vote for every Director he represents. 2.5
Quorum: All meetings of the Board shall be convened and conducted in accordance with the provisions of the Act and the Articles. The quorum for any meeting of the Board shall be two (2) Directors or by their alternate director. If a quorum is not present half an hour from the time appointed for the holding of a meeting of the Board when it is first convened, the meeting shall be adjourned to the day following 14 Business Days thereafter at the same time and place. If at such adjourned meeting a quorum is not present within half an hour from the time appointed to hold the meeting, then any two Directors present at such adjourned meeting shall form a quorum for the purposes of that meeting. Notice of each adjourned meeting shall be given to all Directors.
2.6
Meetings: Meetings of the Board shall be held at such times as the Board shall determine. Not less than seven days' notice (or such shorter period of notice in respect of any particular meeting as may be agreed by the Directors) of each meeting of the Board specifying the date, place and time, of the meeting and the business to be transacted thereat shall be given to all Directors.
2.7
Resolutions in writing: A resolution in writing circulated to all the Directors for the time being and signed or approved by a majority of the Directors by facsimile, cable or telex communication shall be as valid and effectual as if it had been passed at a meeting of the Directors duly convened and held PROVIDED THAT one of the Directors approving such resolution shall be an Investor Director. Any such resolution may consist of several documents in like form, each signed by one or more Directors.
2.8
Conference: The Directors may participate in a meeting of the Directors by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear one another, without a Director being in the physical presence of another Director or Directors, and participation in a meeting pursuant to this Clause shall constitute presence in person at such meeting.
2.9
Quorum at general meeting: The quorum at any general meeting shall be two or more of the Shareholders present in person or by proxy, of which at least one person present must be a representative of the Investors.
2.10
Nominees: The Shareholders hereby irrevocably agree that as the Investor Directors are the nominees of the Investors, such Investor Directors shall be entitled to report all matters concerning the Company, including but not limited to, matters discussed at any meeting of the respective boards, to the Investors and their shareholders and that such Investor Directors may take advice and obtain instructions from the Investors, provided that nothing in this Clause 2.11shall be deemed to release the Investor Directors from their fiduciary duty to the Company as Directors of the Company.
2.11
Auditors: The Founders shall procure that a reputable firm of accountants satisfactory to the Investors shall hold office as Auditors of the Company as soon as practicable after the execution of this Agreement and in any case no later than 3 months from the date hereof.
2.12
Directors in other companies: Where the Company has an interest in another company (the “Related Company”) and is entitled to appoint one or more directors of the Related Company, the Founders and the Company shall procure that, if requested by the Investors, a representative of the Investors shall be appointed as a director of the Related Company.
3.
BUSINESS OF THE COMPANY
3.1
Nature of the Company’s business: The Shareholders agree that the Company shall deal in, design, devise, supply, modify, develop, manufacture, assemble, import, export, buy, sell (wholesale and retail), exchange, barter, let or hire, or otherwise trade, market and distribute all forms of computers, mobile devices, digital cameras, information technology, eCommerce-enabling software tools, internet-based sales marketing programmes, electronic and electrical products, software, programmes, machines, microchips, cards, cables, wires and equipment and to maintain, service and repair all forms of computer, electronic and electrical products, software, programmes, machines, microchips, cards, cables, wires, membranes and equipment and to provide technical, advisory and consultancy services for users and potential users of the aforesaid.
3.2
Change of the Business: The Company may from time to time extend the nature or area of its business with the prior written approval of the Investors.
4.
UNDERTAKINGS BY THE COMPANY AND THE FOUNDERS
4.1
Information: The Founders and the Company jointly and severally undertake to the Investors that for so long as any of the Investors holds any Shares the Company shall and the Founders shall procure that the Company shall: (a)
produce and deliver to the Investors annual audited accounts within 90 days after the end of each financial year and quarterly management accounts of the Company;
(b)
produce and deliver to the Investors the annual budget and operations plan of the Company for the following financial year by not later than the date falling 60 days before the commencement of such financial year and the management reports of the Company when so requested by the Investors; and
(c)
grant the Investors, if so requested by the Investors, reasonable access to the books of the Company and permit the carrying out of audits by representatives of the Investors, at the Investor’s own expense.
In the event that the Company acquires or establishes any new subsidiaries, the Founders' and Company’s obligations set out in this Clause 4 shall be deemed to include the obligation to produce the relevant records, accounts and documents of such subsidiaries (and, where requested by the Investors, on a consolidated basis). The Founders' and Company's obligations set out in Clause 4 shall cease upon any of the Shares being listed on any Recognised Stock Exchange.
5.
TRANSFERS OF SHARES
5.1
Restriction on Transfer: 5.1.1
No Shareholder shall transfer shares held by him in the capital of the Company otherwise than in accordance with the provisions of the Articles and this Agreement.
5.1.2
5.2
For so long as the Investors hold Shares in the Company, the Other Shareholders shall not sell, charge, encumber, transfer or otherwise dispose of all or any part of their interest in the share capital of the Company save with the prior written consent of the Investors.
Transfer to Third Party: Subject to Clause 5.1, any Shareholder may transfer Shares to any third party Provided Always that:(a)
the Founders shall first be notified and given the opportunity to purchase all (and not a part) of such shares at the price at which the third party is to purchase such shares (and the Founders shall be deemed not to have exercised this right after the expiry of 21 days from the date of any notice to the Founders pursuant to this sub-Clause); and
(b)
such third party shall not in the opinion of the Board be in competition with the Company and the provisions of Clause 7 shall have been complied with by the Transferor.
5.3
Condition of Transfer: Unless otherwise agreed by the Shareholders, it shall be a condition precedent to the right of any Transferor to transfer Shares that the Transferee (if not already bound by the provisions of this Agreement) executes in such form as may be reasonably required by and agreed between the existing Shareholders a deed of ratification and accession under which the Transferee shall be bound by the obligations and shall be entitled to the benefit of this Agreement as if an original party hereto in place of the Transferor.
6.
PUBLIC LISTING
6.1
The Shareholders agree that each of them will use their best endeavours to procure a listing of the Company on a Recognised Stock Exchange on or before <1 January 2012> (or such other stock exchange or later date as the Investors may agree).
6.2
The Shareholders agree that in the event of a listing of the Company, the Investors shall have the right but not the obligation to make available their entire shareholding or such proportion of their shareholding to be offered to the public as Vendor Shares. For the avoidance of doubt, in the event that there is a quota on the number of Shares which may be offered as Vendor Shares, then not less than half of such quota, if less than the Investors’ entire shareholding, shall at the Investors’ sole discretion, consist of the Investors’ Shares.
7.
CO-SALE If any of the Founders (the “Transferor”) shall decide to sell any of his Shares to any third party, the Investors may at their discretion require the Transferor to procure such third party to purchase, such number of Shares as such Investor may require, on terms no less favourable than those offered for such Shares held by the Transferor. The Founders shall procure compliance by the Transferor with this cosale obligation.
8.
DURATION AND TERMINATION
8.1
Termination: Subject to the provisions of this Agreement, this Agreement shall take effect without limit in point of time. If any Shareholder sells all of its or his Shares in accordance with the provisions
of this Agreement and with the Articles, it or he shall be released from all of his obligations hereunder. If following any such transfer there shall be more than two Shareholders bound by the provisions of this Agreement, this Agreement shall continue in full force and effect as between the continuing Shareholders Provided That this Agreement shall terminate upon the listing of the Company on any Recognised Stock Exchange.
9.
FINANCE It is hereby agreed that none of the Investors nor Investor Directors shall in any circumstances be obliged to furnish any form of security (whether jointly or severally) in connection with any indebtedness of the Company.
10.
COSTS AND EXPENSES All costs and expenses incurred in the preparation, negotiation and execution of this Agreement and related documents shall (whether or not there is completion under the Share Purchase Agreement) be borne by the party incurring such costs and expenses.
11.
CONFIDENTIALITY
11.1
Communications: All communications between the parties hereto and the Company or any of them and all information and other material supplied to or received by any of them from the others which is either marked “confidential” or is by its nature intended to be exclusively for the knowledge of the recipient alone and any information concerning the business transactions or the financial arrangements of the parties hereto or the Company or of any person with whom any of them is in a confidential relationship with regard to the matter in question coming to the knowledge of the recipient shall be kept confidential by the recipient unless or until compelled to disclose by judicial or administrative procedures or in the opinion of its counsel, by other requirements of law, or the recipient can reasonably demonstrate that (a) it is or part of it is, in the public domain, whereupon, to the extent that it is a public, this obligation shall cease or (b) it is required to be furnished to the bankers or investors or potential investors of any of the parties hereto or to any regulatory agencies as part of a public flotation exercise involving the Company, and in such cases, this obligation shall cease only to the extent required under the respective circumstances.
11.2
By Company: The Founders shall procure the observance of the abovementioned restrictions by the Company and shall take all reasonable steps to minimise the risk of disclosure of confidential information, by ensuring that only the Company's employees, directors, agents and contractors whose duties will require them to possess any of such information shall have access thereto.
11.3
Notwithstanding Termination: The obligations contained in this Clause shall endure, even after the termination of this Agreement, without limit in point of time except and until any confidential information enters the public domain as set out above.
12.
NOTICES
12.1
Addresses: All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post or telefax addressed to the intended recipient thereof at his or its address or telefax number set out below (or to such other address or telefax number as any party may from time to time notify the others). To the Founders
:
To the Investors
:
To the Company
:
Address
:
Tel No: +65 Fax No: +65 Deemed delivery: Any such notice, demand or communication shall be deemed to have been duly served (if given or made by telefax) immediately or (if given or made by letter) seven days after posting and in proving the same it shall be sufficient to show that the envelope containing the same was duly addressed, stamped and posted.
13.
GENERAL MATTERS
13.1
Remedies: No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter Founding at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any of the parties hereto shall not constitute a waiver by such party of the right to pursue any other available remedies.
13.2
Prevalence of Agreement: In the event of any inconsistency between the provisions of this Agreement and the Articles, the provisions of this Agreement shall as between the Shareholders prevail and the Shareholders shall procure the passing of special resolutions for the amendment of the Articles to reflect the provisions of this Agreement.
13.3
Assignment: Save as expressly provided in this Agreement, the respective rights and obligations of the parties hereunder shall not be assignable or transferable. Provided always that the Investors shall be entitled to assign or transfer their respective rights and obligations hereunder to any other funds as may be managed by the respective fund management companies managing the Investors.
13.4
Further Acts: The Shareholders shall execute and do and take such steps as may be in their power to, procure that all other necessary persons, if any, execute and do all such further documents, agreements, deeds, acts and things as may be required so that full effect may be given to the provisions of this Agreement.
13.5
Severance: If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further.
13.6
Amendment and Variation: No amendment or variation of this Agreement shall be effective unless made in writing and signed by and on behalf of each of the parties.
14.
PREVIOUS AGREEMENTS
14.1
This Agreement and the documents referred to herein are in substitution for all previous agreements between all or any of the parties hereto and contain the whole agreement between the parties relating to the subject matter of this Agreement.
14.2
No amendment or variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the parties.
15.
ASSIGNMENT Save as expressly provided in this Clause or elsewhere in this Agreement, the respective rights and obligations of the parties under this Agreement shall not be assignable or transferable. Provided always that the Investors shall be entitled to assign or transfer their respective rights and obligations hereunder to any other funds as may be managed by the respective fund management companies managing the Investors.
16.
GOVERNING LAW AND JURISDICTION
16.1
Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Singapore.
16.2
Jurisdiction: In relation to any legal action or proceedings arising out of or in connection with this Agreement, each of the parties hereto hereby irrevocably submits to the non-exclusive jurisdiction of the courts of Singapore.
17.
COUNTERPARTS
17.1
This Agreement may be signed in any number of counterparts, all of which taken together and when delivered to the parties hereto shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.
17.2
All parties agree that a faxed copy of any counterparts of this Agreement duly signed by the parties shall be valid and effectual and this Agreement shall be deemed duly signed by that party.
SCHEDULE 1 - THE FOUNDERS
Name / NRIC or Passport No.
Correspondence Address & Tel No. and Fax No.
SCHEDULE 2 - THE INVESTORS
Name
Correspondence Address & Tel No. and Fax No.
No. of Subscription Shares
IN WITNESS WHEREOF this Agreement has been entered into on the date stated at the beginning.
