SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement") is made effective on ________ ("Effective Date") at ________, Andaman and Nicobar Islands
BY AND BETWEEN
(Individual), , , (Hereinafter referred to as "Shareholder 1", which expression shall unless it be repugnant to the context or meaning, therefore, be deemed to include their successors, assigns and executors)
AND
(Individual), , , (Hereinafter referred to as "Shareholder 2", which expression shall unless it be repugnant to the context or meaning, therefore, be deemed to include their successors, assigns and executors)
1. BACKGROUND
1.1. ________ ("Company") with its registered office located at ________. The Company is incorporated under the Companies Act of 2013.
1.2. The Shareholders have decided to enter into this Agreement to govern their respective interests, obligations, liabilities, ownership, and rights in the Company and to provide better governance of the Company.
1.3. The Authorized Share Capital of the Company is Rs (________) divided into shares of
1.4. The Issued Share Capital of the Company is Rs ________(________) divided into shares of
1.5. A new Party can be admitted to this Agreement only if a Simple Resolution is passed by the Parties to this Agreement.
IN CONSIDERATION OF the promises and mutual covenants and agreements in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
2. DEFINITIONS
2.1. "Act" means the Companies Act, 2013 (as amended from time to time).
2.2. "Agreement" means this agreement, together will all annexures and schedules hereto.
2.3. "AoA" means Articles of Association of the Company from time to time.
2.4. "Authorised Share Capital" means the total number of shares that the Company is authorized to issue.
2.5. "Board of Directors" or "Board" means the governing body of the Company comprising the duly appointed directors and convened board of directors from time to time.
2.6. "Business" means the following business of the Company: ________.
2.7. "Business Day" means any day, other than a Saturday or Sunday, or any public holiday recognized in the state of Andaman and Nicobar Islands.
2.8. "Company" means the company as referred to above in this Agreement.
2.9. "Director/s" means the person/s elected by the Shareholders to direct, conduct, manage, and supervise the affairs of the Company.
2.10. "Effective Date" means the date the last party signs this Agreement.
2.11. "Issued Share Capital" means the total shares issued by the Company to the Shareholders.
2.12. "Managing Director" means a director who by virtue of AoA or an agreement with the Company or a resolution passed in its general meeting, or by its Board of Directors, is entrusted with substantial powers of management of affairs of the Company.
2.13. "MoU" means the Memorandum of Understanding of the Company from time to time.
2.14. "Ordinary Resolution" means a resolution adopted with the support of more than 50% of the voting rights exercised on the resolution.
2.15. "Parties" means the Company and Shareholders, either collectively or individually, as the context may require.
2.16. "Protected Party" means the Company and Shareholders, either collectively or individually, as the context may require.
2.17. "Restricted Party" means the Shareholders, either collectively or individually, as the context may require.
2.18. "Shares" means one of the units into which the proprietary interest in the Company is divided.
2.19. "Shareholders" means Shareholders of the Company and their successors in title and Shareholder means any one of them (as the context may apply).
2.20. "Special Resolution" means a resolution adopted with the support of at least 75% of the voting rights exercised on the resolution.
3. INTERPRETATION
3.1. Headings are included for convenience only and will not be used in its interpretation.
3.2. Unless the context indicates otherwise, a reference to the singular includes the plural and vice versa, a reference to a natural person includes a corporate entity and vice versa and a reference to any gender includes the other genders.
3.3. When any number of days is prescribed, such number will be reckoned inclusively of the first and exclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day will be the immediately preceding day which is Business Day.
3.4. If a definition is substantive, conferring rights and/or imposing obligations on either Party, the effect will be given to it as if it were a substantive term in the body of this Agreement.
3.5. Any reference to any statute, regulation or other legislation will be a reference to that statute, regulation or other legislation as at Effective Date, and as amended or substituted from time to time.
3.6. The use of the word "Including" followed by the specific example/s will not be construed as limiting the meaning of the general wording preceding it.
3.7. Each of the terms of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly, the rule of construction that the contract will be interpreted against or to the disadvantage of the party responsible for the drafting or preparation of the contract (i.e the doctrine of Contra Proferentem), will not apply.
4. SHARES
4.1. The Shareholders each own the following number of Shares, corresponding to the listed approximate percentage ownership of the Company:
4.1.1. : Shares, % ownership.
4.1.2. : Shares, % ownership.
5. BOARD OF DIRECTORS
5.1. The Company currently have ________ Director/s in the Board.
5.2. The Company cannot have more Directors than specified in the Articles of Association.
5.3. Currently, the Board consists of the following Directors:
________
5.4. The Directors will be appointed by Shareholders using the following voting method: Ordinary Resolution, more than 50% of the vote.
5.5. The Director/s will be appointed for a period of ________. The period can be extended if a simple majority of shareholders support such a decision.
5.6. The Director may resign by serving 60 (sixty) business days' notice to the Company.
5.7. If the director develops a conflict of interest that would harm the integrity of the company and breach of fiduciary duties.
5.8. The following person/s has/have been elected as the Managing Director/s of the Company: ________.
5.9. The Managing Director/s, or his/her duly appointed successor ("the "Managing Director") shall manage, control, and operate the business and affairs of the Company as the Chairman without any further action or approval by the Shareholders or the Board. The Managing Director/s may be changed from time to time with the consent of the Shareholders subject to a Special Resolution.
5.10. The Managing Director/s shall cause the Board to maintain books, records, and other documents required by the law. Notwithstanding any waiver thereof contained in the bylaws, the Managing Director/s shall cause the Board to furnish to the Shareholders an annual audited report.
5.11. The Managing Director/s shall not have any additional voting power by virtue of being the Managing Director/s.
5.12. The Managing Director/s along with the Board agrees to use the Shareholder's best efforts to cause the business of the Company to be conducted in accordance with sound business practices, in a lawful manner, and to endeavour to preserve for the Company the goodwill of its suppliers, customers, employees, and others having business relations with it.
5.13. The Board shall exercise the following powers with the consent of the Shareholders by a Special Resolution, namely:
5.13.1. to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the Company (investment over 20% in the previous Financial Year) or where the Company owns more than one undertaking, of the whole or substantially the whole of any of such undertaking;
5.13.2. to invest otherwise in trust securities the amount of compensation received by it as a result of any merger or amalgamation;
5.13.3. to amend the AoA or MoA of the Company;
5.13.4. to borrow money, where the money to be borrowed, together with the money already borrowed by the Company will exceed the aggregate of its paid-up Share Capital and free reserves, apart from temporary loans obtained from the Company's bankers in the ordinary course of business;
5.13.5. to remit, or give time for the repayment of, any debt due from a director.
6. BOARD MEETING
6.1. The Board shall meet at least once in the following interval: Monthly.
6.2. On such meeting, the Managing Director/CEO of the Company shall report duly to the Board with respect to the current status of the operations of the Company and with respect to all major developments or planned action involving the Company and shall present to the meeting complete current financial information with respect to the Company.
6.3. The participation of directors in a meeting of the Board may be either in person or through video conferencing or other audiovisual means, as may be prescribed, which are capable of recording and recognising the participation of the directors and recording and storing proceedings of such meetings along with date and time.
6.4. A notice of not less than 7 days shall be given to the directors for any such meeting and shall be sent by hand delivery or by post or by electronic means.
6.5. Every notice of a meeting shall specify the place, date, day and hour of meeting and shall contain a statement of the business to be transacted at such meeting.
6.6. The quorum requirement for the Board meeting of the Company shall be governed by the provisions of the Act.The quorum for Board shall be one-third of its total strength or two directors, whichever is higher, and the participation of directors by video conferencing or other audiovisual means shall also be counted for quorum.
7. SPECIAL MEETING AMONG THE SHAREHOLDERS
7.1. The Shareholders of this Agreement agree that they will call a meeting ("Special Meeting") of such Shareholders 10 days or such with notice period as agreed by a majority of Parties to this Agreement, before every general meeting of the Company.
8. MEETING OF THE SHAREHOLDERS
8.1. The meetings of the Company shall be held in accordance with the following:
8.1.1. The Company shall hold its annual general meeting each year. All businesses that are transacted at the ordinary general meeting shall be deemed special except the declaration of dividend, the consideration of accounts, reports of directors and auditors, and the election of directors.
8.1.2. An extraordinary general meeting may be convened by the Board whenever they deem fit. Any Shareholder may requisition an extraordinary general meeting and such meeting may be convened by the Board within 21 Business Days (or any shorter date as agreed by the Shareholders) from the date of the deposit of the requisition.
8.2. The general meeting shall be called by giving not less than 21 clear days notice either in writing or through electronic mode in such manner as may be prescribed. Provided that a general meeting can be called after giving a shorter notice if consent is given in writing or by electronic mode by not less than 95% of members entitled to vote at such meeting.
8.3. No business shall be transacted at any general meeting unless a quorum of members is present at any time when the meeting proceeds to business.
8.4. Save as herein provided, the quorum shall be as follows: ________.
9. MANAGEMENT OF THE COMPANY
9.1. The Board of Directors shall be entitled to exercise all such powers and to do all such acts and things, as the Company is authorized to exercise and do subject to the provision of the Act, MoU or AoA, any regulations not inconsistent therewith and duly made thereunder, including regulations made by the Company in general meeting.
9.2. The Board shall be responsible for the day-to-day management of the Company.
9.3. The Board shall use all reasonable and proper means to maintain, improve and extend the business of the Company in accordance with the business plans agreed to by the Board from time to time.
9.4. The Board shall ensure that comprehensive written and electronic financial books of account are kept by the Company. These shall include, inter alia, monthly management accounts and annual financial statements.
9.5. The Board shall from time to time cause to be prepared and distributed to the Shareholders a monthly management account, that fairly represents the Business and operations of the Company.
9.6. The Shareholders will have unlimited access to the Company's books at all times.
9.7. The following person/s shall have signing powers on the bank account/s and have the authorization to make electronic banking payments and conduct Internet and other forms of electronic banking:
________
10. FUNDING OF THE COMPANY
10.1. Notwithstanding any other provision of this Agreement, if the Board, in the exercise of good faith and its reasonable judgment, determines that the Company requires additional funds and such funds cannot be obtained from banks or other financial institutions on reasonable arms-length commercial terms, the Board may request, by the issuance of a notice to all the Shareholders of the Company, to contribute. The details of the funding will be mentioned on such notice.
10.2. For the avoidance of doubt, under no circumstances shall a failure to provide funds by a Shareholder pursuant to a funding notice be considered to be a default by such Shareholder under this Agreement or make such Shareholder in any way liable for the payment of such funds.
11. SHAREHOLDER'S OPTION TO PURCHASE
11.1. In case, a Shareholder ("Transferring Shareholder") intends to transfer any Share he/she holds to any other Shareholder in the Company, such Shareholder shall follow the following procedure:
11.1.1. The Transferring Shareholder must provide written notice ("Transfer Notice") to the other Shareholders with details such as the intention of transferring Shares, number of Shares, price of Shares, and details of the purchaser of such sales.
11.1.2. Upon receipt of a valid Transfer Notice, the Shareholder mentioned in such notice ("Purchasing Shareholder") may within one month serve a notice ("Purchasing Notice") showing the intention of any purchase.
11.1.3. Such Purchase Notice shall include the intended number of Shares to be purchased and confirmation of the price of shares.
12. ANTI-DILUTION
12.1. In case the Company issues new Shares ("New Shares") to other parties at any time, then:
12.1.1. if the new Shares belong to the existing class of Shares, the Company must offer each Shareholder a number of new Shares which would enable such Shareholder to maintain its existing proportion of Shares held in the Company;
12.1.2. if the new Shares belong to a new class of Shares, the Company must offer each Shareholder a number of new Shares which is proportionate to the Shareholding of Shareholder, calculated on a pro-rata basis;
12.1.3. The price of such Shares shall be determined by the Board or a fair price determined by the auditors of the Company.
12.1.4. Where the Shareholders decline the offer, the Board may subject to terms of any resolution of the Company, dispose of the Shares at a price not less than that specified in the offer and in such manner and terms as they think most beneficial to the Company.
12.1.5. if such price of Share is lower than the price at which a Shareholder who is a Party to this Agreement was issued Shares, then Shareholder who is Party to this Agreement has right to receive such additional Shares, without any additional cost.
13. RESTRICTIONS ON TRANSFER
13.1. Any transfer, sale, assignment, hypothecation, encumbrance, or alienation of any of the shares of the Company, other than according to the terms of this Agreement is void and transfers no right, title, or interest in or to those shares to the purported transferee, buyer, assignee, pledgee, or encumbrance holder.
13.2. The Shares can only be transferred to the following group of people or entities: .
13.3. The Shares can only be pledged to the following group of people or entities: ________.
13.4. No Party to this Agreement may transfer any of the Shares in the Company held by him/her either to another Shareholder or any other third party, without the prior written consent of all other Parties to this Agreement for the following period: ________.
14. RIGHT OF FIRST REFUSAL
14.1. If any of the Shareholders wish to sell, transfer or otherwise dispose of any or all of his/her Shares ("Seller"), the other shareholders ("Offerees") shall have a prior right to buy such Shares ("Offered Shares").
14.2. The Seller shall give the Offerees notice in writing of his/her desire or intention to sell all or any of his/her shares to them. Such notice shall be given to offerees to their designated email addresses or through registered post to such address on record and updated from time with the Company or by serving such notice upon the offerees personally. Such notice shall set out:
14.2.1. the number of Shares beneficially owned by the Seller;
14.2.2. the number and class of Shares which make up the Offered Shares, the price and the terms and conditions of the sale of the Offered Shares.
14.3. Each Offeree may, within a period of 30 (thirty) days following the date when the Selling Notice shall be deemed to have been given, give written notice through email or registered letter to the Seller at the address on the Company records or such address as mentioned on the Seller Notice or by serving the notice personally to the Seller. The reply notice ("Buying Notice") shall state either that such Offeree is willing to purchase the Offered Shares, or that she/he is not willing to purchase the Offered Shares. If any Offeree fails to give the Buying Notice within 30 (thirty) days she/he will be deemed to have refused to purchase the Offered Shares.
14.4. After receipt by the Seller of each Buying Notice, or after the expiry of 30 (thirty) days from the date of the Selling Notice, whichever is earlier, the Seller shall be bound to sell all the Offered Shares to the Offerees who have indicated in the Buying Notice that they wish to purchase the Offered Shares ("Buyers") at such price and on such terms as contained in the Selling Notice.
14.5. If more than one Offeree has given a Buying Notice to the Seller indicating his/her willingness to purchase the Offered Shares, then, the Buyers shall purchase all the Shares comprising the Offered Shares in such proportions as they may agree upon, or, in the absence of agreement, in the Common Share Ratios of each Buyer, computed without reference to the Seller's Shares.
14.6. If the offerees by reason of the provisions hereinbefore contained, do not purchase the Offered Shares then the Seller shall be at liberty to sell the Offered Shares to an outsider but only at a price equal to or in excess of the price contained in the Selling Notice and on the same terms as disclosed in the Selling Notice.
14.7. If within 30 (thirty) days of the date of receipt of the last Buying Notice by the Seller indicating refusal of the Offerees to purchase the Offered Shares, the Seller has not received an unconditional offer to purchase the Shares from an outsider and has completed the sale of the Offered Shares to the Outsider within 30 (thirty) days of the date of receipt of the unconditional offer, then the rights of the Offerees shall revive in respect of the Offered Shares and if the Seller shall thereafter desire to sell any of his/her Shares he/she shall again give notice as mentioned above from time to time to the existing Shareholders.
14.8. Any offer to purchase Shares from an Outsider must include the condition that the Outsider agrees to become a party to this Agreement pursuant to the purchase of the Shares.
15. DRAG-ALONG RIGHTS
15.1. In case a Shareholder ("Seller") intends to sell or transfer some or all its Shares to a third party ("Buyer"), and the Shares that it proposes to sell or transfer ("Sale Shares") represent equal to or more than % of the total Shares in the Company that exists at the time of proposed sale or transfer then:
15.1.1. if the Seller is selling or transferring all of the Seller's Shares, then the Seller will have the option to mandate each of the remaining Shareholders ("Remaining Shareholders") to also sell or transfer to the Buyer all of the Shares owned by each of the said remaining Shareholders;
15.1.2. if the Seller is not selling or transferring all of the Seller's Shares, then the Seller will have the option to mandate each of the Remaining Shareholders to sell or transfer to the Buyer a proportion of the said Remaining Shareholder's Shares which is equivalent to the proportion of the total number of Shares held by the Seller which Seller is proposing to sell or transfer ("Drag-Along Proportion").
15.2. Any sale or transfer of the Remaining Shareholder's Shares under this clause ("Drag-Along Sale") shall occur in accordance with the following procedure:
15.2.1. the Seller must serve a notice ("Drag-Along Notice") on the Company and on all Remaining Shareholders which confirms that the Seller is exercising its rights to the required Drag-Along Sale, confirms the price per Share which the Buyer has agreed to pay for the Sale Shares ("Drag-Along Price"), and provide a copy of the terms and conditions that will apply to the Drag-Along Sale;
15.2.2. in the event upon receipt of the Drag-Along Notice as per this clause, each Remaining Shareholder must sell their respective Shares to the Buyer at the Drag-Along Price and on the other terms and conditions as set out in the Drag-Along Notice:
15.2.3. In the event that the Seller does not complete the sale of Shares in accordance with a Drag-Along Notice, then the Remaining Shareholders will not be required to sell their Shares in accordance with the Drag-Along Notice and Drag Along Notice along with the obligations under it in relation to the Purchase will lapse.
16. TAG-ALONG RIGHTS
16.1. In case a Shareholder ("Seller") intends to sell or transfer some or all of its Shares ("Tag-Along Shares") to a third party or another Shareholder ("Buyer"), under an arms-length, bona fide offer ("Tag-Along Sale") then the Seller must serve a notice ("Tag-Along Notice") on the Company and on all remaining Shareholders which includes the identity of the Buyer, price and number of shares and term and conditions of the sale.
16.2. Within 15 days of receipt of a Tag-Along Notice, each remaining Shareholder ("Remaining Shareholder") will have the right to sell such number of Shares (same class as of Tag-Along Shares and in proportion to Remaining Shareholders total holding of Shares which is equal to or less than the percentage of Tag Along Shares held by the Seller at the time of the Tag-Along Notice.
16.3. Any sale or transfer of Remaining Shareholder's Shares ("Remaining Tag-Along Sale") under this clause shall be as per the following procedure: the Remaining Tag-Along Sale shall be as per the terms and conditions, Tag-Along Price, mentioned on the Tag-Along Notice, and the Remaining Shareholders that intends to sell the shares shall serve a prior intimation notice.
17. TERMINATION OF THIS AGREEMENT
17.1. The Parties cannot withdraw from this Agreement before ________ ("Lock-in Period") from the Effective Date.
17.2. If any Party withdraws from this Agreement before the Lock-in-Period is over, he or she shall be liable to the following consequences:
________
17.3. After the Lock-in Period, Any Party can withdraw from this Agreement by serving a written notice of 60 (sixty) days to the other Parties to this Agreement.
17.4. If any Party withdraws from this Agreement without serving the aforementioned notice period, he or she shall be liable to the following consequences:
17.5. A Party to this Agreement will be terminated from this Agreement if they commit any material breach of this Agreement. Such termination will come into effect if a Simple Resolution is passed by the Parties to this Agreement.
17.6. This Agreement will cease to exist if all Parties/except one Party to this Agreement cease to be the Shareholders of the Company.
17.7. This Agreement will be valid till the following period: ________.
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20. CONFIDENTIAL INFORMATION
20.1. Restricted Party/Shareholder acknowledges that by reason of business relationship with the Protected Party/Company, he/she had or may have access to the confidential information of the Protected Party, including the contents of this Agreement, personal information, payroll information, financial statements, budget statements, strategic plans and strategies, pricing and cost information and other information developed or obtained by the Protected Party that is not generally available to the industry in which Protected Party competes ("Confidential Information"). Restricted Party agrees that after entering into this agreement, he/ she will not directly or indirectly use or divulge such confidential information for any reason and agrees to return or destroy as advised by the Protected Party within a reasonable time. These obligations are in addition to any obligations the Restricted Party has under the state or central laws. The Restricted Party also agrees that all the confidential information shall remain the exclusive property of the owner.
20.2. Restricted Party recognises and acknowledges that the confidential and trade secret information is a valuable and unique asset of the Protected Party, and Restricted Party agrees to maintain the confidentiality of the trade secrets and not to disclose it, in whole or in part, to any person, firm, corporation or other entity for any reason.
21. COMMUNICATION AND NOTICES
All the notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, once acknowledged by the recipient, (c) sent by email provided under this Agreement.
22. MODIFICATION OF AGREEMENT
In the event any provision of this Agreement is determined to be invalid by any court or other entity of competent jurisdiction, the provision of this Agreement shall be deemed to have been amended and the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such invalid provision so as to carry out the intent of this Agreement as far as possible and to render this Agreement enforceable in all respects as so modified.
23. NO WAIVER
The failure of any party hereto to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provisions or to affect the validity of this Agreement or any part thereof or the right of either party to enforce each and every provision in accordance with its terms.
24. HEADINGS
The headings in this Agreement are included for the convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.
25. INTERPRETATION
The parties acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this Agreement and has had the opportunity to contribute to its revision. Accordingly, the rule of construction to the effect that ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both parties and not in favour or against either party.
26. REMEDIES
Each Party recognises that the foregoing restrictive covenants are fair and reasonable and are required for the protection of legitimate business interests. Each Party also understands that the other Party will be irrevocably harmed if the restrictive covenants are not specifically enforced. Accordingly, Each Party agrees that the foregoing restrictive covenants may be enforced by the other Party through temporary and/or permanent injunctive relief, without prejudice to other reliefs as may exist.
27. DISPUTES
27.1. Both parties do hereby agree that any dispute arising out of or in relation to this agreement shall be settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and/ or any statutory modification or re-enactment thereof for the time being in force. The single Arbitrator shall be appointed mutually by the parties. Each party shall pay their own costs and fees of the arbitration and the cost of the arbitrator shall be borne equally. The seat or place of the arbitration shall be at ________, Andaman and Nicobar Islands.
27.2. The Agreement shall be governed in accordance with the laws of India and the courts of ________, Andaman and Nicobar Islands will have the exclusive jurisdiction.
28. LEGAL FEE AND COSTS
In the event of any legal action by any Party to enforce any one or more provisions of this Agreement, whether at law or in equity, the prevailing party shall be entitled to receive from the other party all enforcement costs including, without limitation, reasonable legal fees and costs whether incurred before, during and after the trial or other litigation including appeal.
29. SURVIVAL OF OBLIGATION
Notwithstanding any other provisions of this Agreement, at termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination, expiration or completion shall remain in provisions that are explicitly stated to survive termination, expiration or completion shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive termination, expiration or completion.
30. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument.
31. ENTIRE AGREEMENT
Both the parties represent and agree that they have read this Agreement, and understand its terms and the fact that it releases all claims each might have entered into this Agreement without duress or coercion from any source. This Agreement supersedes all other Agreements entered into between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on ________.
1.
____________________
2.
____________________
WITNESS-1
Name: _____________________________
Address: ___________________________
___________________________________
___________________________________
Signature
WITNESS-2
Name: _____________________________
Address: ___________________________
___________________________________
___________________________________
Signature
SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement") is made effective on ________ ("Effective Date") at ________, Andaman and Nicobar Islands
BY AND BETWEEN
(Individual), , , (Hereinafter referred to as "Shareholder 1", which expression shall unless it be repugnant to the context or meaning, therefore, be deemed to include their successors, assigns and executors)
AND
(Individual), , , (Hereinafter referred to as "Shareholder 2", which expression shall unless it be repugnant to the context or meaning, therefore, be deemed to include their successors, assigns and executors)
1. BACKGROUND
1.1. ________ ("Company") with its registered office located at ________. The Company is incorporated under the Companies Act of 2013.
1.2. The Shareholders have decided to enter into this Agreement to govern their respective interests, obligations, liabilities, ownership, and rights in the Company and to provide better governance of the Company.
1.3. The Authorized Share Capital of the Company is Rs (________) divided into shares of
1.4. The Issued Share Capital of the Company is Rs ________(________) divided into shares of
1.5. A new Party can be admitted to this Agreement only if a Simple Resolution is passed by the Parties to this Agreement.
IN CONSIDERATION OF the promises and mutual covenants and agreements in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
2. DEFINITIONS
2.1. "Act" means the Companies Act, 2013 (as amended from time to time).
2.2. "Agreement" means this agreement, together will all annexures and schedules hereto.
2.3. "AoA" means Articles of Association of the Company from time to time.
2.4. "Authorised Share Capital" means the total number of shares that the Company is authorized to issue.
2.5. "Board of Directors" or "Board" means the governing body of the Company comprising the duly appointed directors and convened board of directors from time to time.
2.6. "Business" means the following business of the Company: ________.
2.7. "Business Day" means any day, other than a Saturday or Sunday, or any public holiday recognized in the state of Andaman and Nicobar Islands.
2.8. "Company" means the company as referred to above in this Agreement.
2.9. "Director/s" means the person/s elected by the Shareholders to direct, conduct, manage, and supervise the affairs of the Company.
2.10. "Effective Date" means the date the last party signs this Agreement.
2.11. "Issued Share Capital" means the total shares issued by the Company to the Shareholders.
2.12. "Managing Director" means a director who by virtue of AoA or an agreement with the Company or a resolution passed in its general meeting, or by its Board of Directors, is entrusted with substantial powers of management of affairs of the Company.
2.13. "MoU" means the Memorandum of Understanding of the Company from time to time.
2.14. "Ordinary Resolution" means a resolution adopted with the support of more than 50% of the voting rights exercised on the resolution.
2.15. "Parties" means the Company and Shareholders, either collectively or individually, as the context may require.
2.16. "Protected Party" means the Company and Shareholders, either collectively or individually, as the context may require.
2.17. "Restricted Party" means the Shareholders, either collectively or individually, as the context may require.
2.18. "Shares" means one of the units into which the proprietary interest in the Company is divided.
2.19. "Shareholders" means Shareholders of the Company and their successors in title and Shareholder means any one of them (as the context may apply).
2.20. "Special Resolution" means a resolution adopted with the support of at least 75% of the voting rights exercised on the resolution.
3. INTERPRETATION
3.1. Headings are included for convenience only and will not be used in its interpretation.
3.2. Unless the context indicates otherwise, a reference to the singular includes the plural and vice versa, a reference to a natural person includes a corporate entity and vice versa and a reference to any gender includes the other genders.
3.3. When any number of days is prescribed, such number will be reckoned inclusively of the first and exclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day will be the immediately preceding day which is Business Day.
3.4. If a definition is substantive, conferring rights and/or imposing obligations on either Party, the effect will be given to it as if it were a substantive term in the body of this Agreement.
3.5. Any reference to any statute, regulation or other legislation will be a reference to that statute, regulation or other legislation as at Effective Date, and as amended or substituted from time to time.
3.6. The use of the word "Including" followed by the specific example/s will not be construed as limiting the meaning of the general wording preceding it.
3.7. Each of the terms of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly, the rule of construction that the contract will be interpreted against or to the disadvantage of the party responsible for the drafting or preparation of the contract (i.e the doctrine of Contra Proferentem), will not apply.
4. SHARES
4.1. The Shareholders each own the following number of Shares, corresponding to the listed approximate percentage ownership of the Company:
4.1.1. : Shares, % ownership.
4.1.2. : Shares, % ownership.
5. BOARD OF DIRECTORS
5.1. The Company currently have ________ Director/s in the Board.
5.2. The Company cannot have more Directors than specified in the Articles of Association.
5.3. Currently, the Board consists of the following Directors:
________
5.4. The Directors will be appointed by Shareholders using the following voting method: Ordinary Resolution, more than 50% of the vote.
5.5. The Director/s will be appointed for a period of ________. The period can be extended if a simple majority of shareholders support such a decision.
5.6. The Director may resign by serving 60 (sixty) business days' notice to the Company.
5.7. If the director develops a conflict of interest that would harm the integrity of the company and breach of fiduciary duties.
5.8. The following person/s has/have been elected as the Managing Director/s of the Company: ________.
5.9. The Managing Director/s, or his/her duly appointed successor ("the "Managing Director") shall manage, control, and operate the business and affairs of the Company as the Chairman without any further action or approval by the Shareholders or the Board. The Managing Director/s may be changed from time to time with the consent of the Shareholders subject to a Special Resolution.
5.10. The Managing Director/s shall cause the Board to maintain books, records, and other documents required by the law. Notwithstanding any waiver thereof contained in the bylaws, the Managing Director/s shall cause the Board to furnish to the Shareholders an annual audited report.
5.11. The Managing Director/s shall not have any additional voting power by virtue of being the Managing Director/s.
5.12. The Managing Director/s along with the Board agrees to use the Shareholder's best efforts to cause the business of the Company to be conducted in accordance with sound business practices, in a lawful manner, and to endeavour to preserve for the Company the goodwill of its suppliers, customers, employees, and others having business relations with it.
5.13. The Board shall exercise the following powers with the consent of the Shareholders by a Special Resolution, namely:
5.13.1. to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the Company (investment over 20% in the previous Financial Year) or where the Company owns more than one undertaking, of the whole or substantially the whole of any of such undertaking;
5.13.2. to invest otherwise in trust securities the amount of compensation received by it as a result of any merger or amalgamation;
5.13.3. to amend the AoA or MoA of the Company;
5.13.4. to borrow money, where the money to be borrowed, together with the money already borrowed by the Company will exceed the aggregate of its paid-up Share Capital and free reserves, apart from temporary loans obtained from the Company's bankers in the ordinary course of business;
5.13.5. to remit, or give time for the repayment of, any debt due from a director.
6. BOARD MEETING
6.1. The Board shall meet at least once in the following interval: Monthly.
6.2. On such meeting, the Managing Director/CEO of the Company shall report duly to the Board with respect to the current status of the operations of the Company and with respect to all major developments or planned action involving the Company and shall present to the meeting complete current financial information with respect to the Company.
6.3. The participation of directors in a meeting of the Board may be either in person or through video conferencing or other audiovisual means, as may be prescribed, which are capable of recording and recognising the participation of the directors and recording and storing proceedings of such meetings along with date and time.
6.4. A notice of not less than 7 days shall be given to the directors for any such meeting and shall be sent by hand delivery or by post or by electronic means.
6.5. Every notice of a meeting shall specify the place, date, day and hour of meeting and shall contain a statement of the business to be transacted at such meeting.
6.6. The quorum requirement for the Board meeting of the Company shall be governed by the provisions of the Act.The quorum for Board shall be one-third of its total strength or two directors, whichever is higher, and the participation of directors by video conferencing or other audiovisual means shall also be counted for quorum.
7. SPECIAL MEETING AMONG THE SHAREHOLDERS
7.1. The Shareholders of this Agreement agree that they will call a meeting ("Special Meeting") of such Shareholders 10 days or such with notice period as agreed by a majority of Parties to this Agreement, before every general meeting of the Company.
8. MEETING OF THE SHAREHOLDERS
8.1. The meetings of the Company shall be held in accordance with the following:
8.1.1. The Company shall hold its annual general meeting each year. All businesses that are transacted at the ordinary general meeting shall be deemed special except the declaration of dividend, the consideration of accounts, reports of directors and auditors, and the election of directors.
8.1.2. An extraordinary general meeting may be convened by the Board whenever they deem fit. Any Shareholder may requisition an extraordinary general meeting and such meeting may be convened by the Board within 21 Business Days (or any shorter date as agreed by the Shareholders) from the date of the deposit of the requisition.
8.2. The general meeting shall be called by giving not less than 21 clear days notice either in writing or through electronic mode in such manner as may be prescribed. Provided that a general meeting can be called after giving a shorter notice if consent is given in writing or by electronic mode by not less than 95% of members entitled to vote at such meeting.
8.3. No business shall be transacted at any general meeting unless a quorum of members is present at any time when the meeting proceeds to business.
8.4. Save as herein provided, the quorum shall be as follows: ________.
9. MANAGEMENT OF THE COMPANY
9.1. The Board of Directors shall be entitled to exercise all such powers and to do all such acts and things, as the Company is authorized to exercise and do subject to the provision of the Act, MoU or AoA, any regulations not inconsistent therewith and duly made thereunder, including regulations made by the Company in general meeting.
9.2. The Board shall be responsible for the day-to-day management of the Company.
9.3. The Board shall use all reasonable and proper means to maintain, improve and extend the business of the Company in accordance with the business plans agreed to by the Board from time to time.
9.4. The Board shall ensure that comprehensive written and electronic financial books of account are kept by the Company. These shall include, inter alia, monthly management accounts and annual financial statements.
9.5. The Board shall from time to time cause to be prepared and distributed to the Shareholders a monthly management account, that fairly represents the Business and operations of the Company.
9.6. The Shareholders will have unlimited access to the Company's books at all times.
9.7. The following person/s shall have signing powers on the bank account/s and have the authorization to make electronic banking payments and conduct Internet and other forms of electronic banking:
________
10. FUNDING OF THE COMPANY
10.1. Notwithstanding any other provision of this Agreement, if the Board, in the exercise of good faith and its reasonable judgment, determines that the Company requires additional funds and such funds cannot be obtained from banks or other financial institutions on reasonable arms-length commercial terms, the Board may request, by the issuance of a notice to all the Shareholders of the Company, to contribute. The details of the funding will be mentioned on such notice.
10.2. For the avoidance of doubt, under no circumstances shall a failure to provide funds by a Shareholder pursuant to a funding notice be considered to be a default by such Shareholder under this Agreement or make such Shareholder in any way liable for the payment of such funds.
11. SHAREHOLDER'S OPTION TO PURCHASE
11.1. In case, a Shareholder ("Transferring Shareholder") intends to transfer any Share he/she holds to any other Shareholder in the Company, such Shareholder shall follow the following procedure:
11.1.1. The Transferring Shareholder must provide written notice ("Transfer Notice") to the other Shareholders with details such as the intention of transferring Shares, number of Shares, price of Shares, and details of the purchaser of such sales.
11.1.2. Upon receipt of a valid Transfer Notice, the Shareholder mentioned in such notice ("Purchasing Shareholder") may within one month serve a notice ("Purchasing Notice") showing the intention of any purchase.
11.1.3. Such Purchase Notice shall include the intended number of Shares to be purchased and confirmation of the price of shares.
12. ANTI-DILUTION
12.1. In case the Company issues new Shares ("New Shares") to other parties at any time, then:
12.1.1. if the new Shares belong to the existing class of Shares, the Company must offer each Shareholder a number of new Shares which would enable such Shareholder to maintain its existing proportion of Shares held in the Company;
12.1.2. if the new Shares belong to a new class of Shares, the Company must offer each Shareholder a number of new Shares which is proportionate to the Shareholding of Shareholder, calculated on a pro-rata basis;
12.1.3. The price of such Shares shall be determined by the Board or a fair price determined by the auditors of the Company.
12.1.4. Where the Shareholders decline the offer, the Board may subject to terms of any resolution of the Company, dispose of the Shares at a price not less than that specified in the offer and in such manner and terms as they think most beneficial to the Company.
12.1.5. if such price of Share is lower than the price at which a Shareholder who is a Party to this Agreement was issued Shares, then Shareholder who is Party to this Agreement has right to receive such additional Shares, without any additional cost.
13. RESTRICTIONS ON TRANSFER
13.1. Any transfer, sale, assignment, hypothecation, encumbrance, or alienation of any of the shares of the Company, other than according to the terms of this Agreement is void and transfers no right, title, or interest in or to those shares to the purported transferee, buyer, assignee, pledgee, or encumbrance holder.
13.2. The Shares can only be transferred to the following group of people or entities: .
13.3. The Shares can only be pledged to the following group of people or entities: ________.
13.4. No Party to this Agreement may transfer any of the Shares in the Company held by him/her either to another Shareholder or any other third party, without the prior written consent of all other Parties to this Agreement for the following period: ________.
14. RIGHT OF FIRST REFUSAL
14.1. If any of the Shareholders wish to sell, transfer or otherwise dispose of any or all of his/her Shares ("Seller"), the other shareholders ("Offerees") shall have a prior right to buy such Shares ("Offered Shares").
14.2. The Seller shall give the Offerees notice in writing of his/her desire or intention to sell all or any of his/her shares to them. Such notice shall be given to offerees to their designated email addresses or through registered post to such address on record and updated from time with the Company or by serving such notice upon the offerees personally. Such notice shall set out:
14.2.1. the number of Shares beneficially owned by the Seller;
14.2.2. the number and class of Shares which make up the Offered Shares, the price and the terms and conditions of the sale of the Offered Shares.
14.3. Each Offeree may, within a period of 30 (thirty) days following the date when the Selling Notice shall be deemed to have been given, give written notice through email or registered letter to the Seller at the address on the Company records or such address as mentioned on the Seller Notice or by serving the notice personally to the Seller. The reply notice ("Buying Notice") shall state either that such Offeree is willing to purchase the Offered Shares, or that she/he is not willing to purchase the Offered Shares. If any Offeree fails to give the Buying Notice within 30 (thirty) days she/he will be deemed to have refused to purchase the Offered Shares.
14.4. After receipt by the Seller of each Buying Notice, or after the expiry of 30 (thirty) days from the date of the Selling Notice, whichever is earlier, the Seller shall be bound to sell all the Offered Shares to the Offerees who have indicated in the Buying Notice that they wish to purchase the Offered Shares ("Buyers") at such price and on such terms as contained in the Selling Notice.
14.5. If more than one Offeree has given a Buying Notice to the Seller indicating his/her willingness to purchase the Offered Shares, then, the Buyers shall purchase all the Shares comprising the Offered Shares in such proportions as they may agree upon, or, in the absence of agreement, in the Common Share Ratios of each Buyer, computed without reference to the Seller's Shares.
14.6. If the offerees by reason of the provisions hereinbefore contained, do not purchase the Offered Shares then the Seller shall be at liberty to sell the Offered Shares to an outsider but only at a price equal to or in excess of the price contained in the Selling Notice and on the same terms as disclosed in the Selling Notice.
14.7. If within 30 (thirty) days of the date of receipt of the last Buying Notice by the Seller indicating refusal of the Offerees to purchase the Offered Shares, the Seller has not received an unconditional offer to purchase the Shares from an outsider and has completed the sale of the Offered Shares to the Outsider within 30 (thirty) days of the date of receipt of the unconditional offer, then the rights of the Offerees shall revive in respect of the Offered Shares and if the Seller shall thereafter desire to sell any of his/her Shares he/she shall again give notice as mentioned above from time to time to the existing Shareholders.
14.8. Any offer to purchase Shares from an Outsider must include the condition that the Outsider agrees to become a party to this Agreement pursuant to the purchase of the Shares.
15. DRAG-ALONG RIGHTS
15.1. In case a Shareholder ("Seller") intends to sell or transfer some or all its Shares to a third party ("Buyer"), and the Shares that it proposes to sell or transfer ("Sale Shares") represent equal to or more than % of the total Shares in the Company that exists at the time of proposed sale or transfer then:
15.1.1. if the Seller is selling or transferring all of the Seller's Shares, then the Seller will have the option to mandate each of the remaining Shareholders ("Remaining Shareholders") to also sell or transfer to the Buyer all of the Shares owned by each of the said remaining Shareholders;
15.1.2. if the Seller is not selling or transferring all of the Seller's Shares, then the Seller will have the option to mandate each of the Remaining Shareholders to sell or transfer to the Buyer a proportion of the said Remaining Shareholder's Shares which is equivalent to the proportion of the total number of Shares held by the Seller which Seller is proposing to sell or transfer ("Drag-Along Proportion").
15.2. Any sale or transfer of the Remaining Shareholder's Shares under this clause ("Drag-Along Sale") shall occur in accordance with the following procedure:
15.2.1. the Seller must serve a notice ("Drag-Along Notice") on the Company and on all Remaining Shareholders which confirms that the Seller is exercising its rights to the required Drag-Along Sale, confirms the price per Share which the Buyer has agreed to pay for the Sale Shares ("Drag-Along Price"), and provide a copy of the terms and conditions that will apply to the Drag-Along Sale;
15.2.2. in the event upon receipt of the Drag-Along Notice as per this clause, each Remaining Shareholder must sell their respective Shares to the Buyer at the Drag-Along Price and on the other terms and conditions as set out in the Drag-Along Notice:
15.2.3. In the event that the Seller does not complete the sale of Shares in accordance with a Drag-Along Notice, then the Remaining Shareholders will not be required to sell their Shares in accordance with the Drag-Along Notice and Drag Along Notice along with the obligations under it in relation to the Purchase will lapse.
16. TAG-ALONG RIGHTS
16.1. In case a Shareholder ("Seller") intends to sell or transfer some or all of its Shares ("Tag-Along Shares") to a third party or another Shareholder ("Buyer"), under an arms-length, bona fide offer ("Tag-Along Sale") then the Seller must serve a notice ("Tag-Along Notice") on the Company and on all remaining Shareholders which includes the identity of the Buyer, price and number of shares and term and conditions of the sale.
16.2. Within 15 days of receipt of a Tag-Along Notice, each remaining Shareholder ("Remaining Shareholder") will have the right to sell such number of Shares (same class as of Tag-Along Shares and in proportion to Remaining Shareholders total holding of Shares which is equal to or less than the percentage of Tag Along Shares held by the Seller at the time of the Tag-Along Notice.
16.3. Any sale or transfer of Remaining Shareholder's Shares ("Remaining Tag-Along Sale") under this clause shall be as per the following procedure: the Remaining Tag-Along Sale shall be as per the terms and conditions, Tag-Along Price, mentioned on the Tag-Along Notice, and the Remaining Shareholders that intends to sell the shares shall serve a prior intimation notice.
17. TERMINATION OF THIS AGREEMENT
17.1. The Parties cannot withdraw from this Agreement before ________ ("Lock-in Period") from the Effective Date.
17.2. If any Party withdraws from this Agreement before the Lock-in-Period is over, he or she shall be liable to the following consequences:
________
17.3. After the Lock-in Period, Any Party can withdraw from this Agreement by serving a written notice of 60 (sixty) days to the other Parties to this Agreement.
17.4. If any Party withdraws from this Agreement without serving the aforementioned notice period, he or she shall be liable to the following consequences:
17.5. A Party to this Agreement will be terminated from this Agreement if they commit any material breach of this Agreement. Such termination will come into effect if a Simple Resolution is passed by the Parties to this Agreement.
17.6. This Agreement will cease to exist if all Parties/except one Party to this Agreement cease to be the Shareholders of the Company.
17.7. This Agreement will be valid till the following period: ________.
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20. CONFIDENTIAL INFORMATION
20.1. Restricted Party/Shareholder acknowledges that by reason of business relationship with the Protected Party/Company, he/she had or may have access to the confidential information of the Protected Party, including the contents of this Agreement, personal information, payroll information, financial statements, budget statements, strategic plans and strategies, pricing and cost information and other information developed or obtained by the Protected Party that is not generally available to the industry in which Protected Party competes ("Confidential Information"). Restricted Party agrees that after entering into this agreement, he/ she will not directly or indirectly use or divulge such confidential information for any reason and agrees to return or destroy as advised by the Protected Party within a reasonable time. These obligations are in addition to any obligations the Restricted Party has under the state or central laws. The Restricted Party also agrees that all the confidential information shall remain the exclusive property of the owner.
20.2. Restricted Party recognises and acknowledges that the confidential and trade secret information is a valuable and unique asset of the Protected Party, and Restricted Party agrees to maintain the confidentiality of the trade secrets and not to disclose it, in whole or in part, to any person, firm, corporation or other entity for any reason.
21. COMMUNICATION AND NOTICES
All the notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, once acknowledged by the recipient, (c) sent by email provided under this Agreement.
22. MODIFICATION OF AGREEMENT
In the event any provision of this Agreement is determined to be invalid by any court or other entity of competent jurisdiction, the provision of this Agreement shall be deemed to have been amended and the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such invalid provision so as to carry out the intent of this Agreement as far as possible and to render this Agreement enforceable in all respects as so modified.
23. NO WAIVER
The failure of any party hereto to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provisions or to affect the validity of this Agreement or any part thereof or the right of either party to enforce each and every provision in accordance with its terms.
24. HEADINGS
The headings in this Agreement are included for the convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.
25. INTERPRETATION
The parties acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this Agreement and has had the opportunity to contribute to its revision. Accordingly, the rule of construction to the effect that ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both parties and not in favour or against either party.
26. REMEDIES
Each Party recognises that the foregoing restrictive covenants are fair and reasonable and are required for the protection of legitimate business interests. Each Party also understands that the other Party will be irrevocably harmed if the restrictive covenants are not specifically enforced. Accordingly, Each Party agrees that the foregoing restrictive covenants may be enforced by the other Party through temporary and/or permanent injunctive relief, without prejudice to other reliefs as may exist.
27. DISPUTES
27.1. Both parties do hereby agree that any dispute arising out of or in relation to this agreement shall be settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and/ or any statutory modification or re-enactment thereof for the time being in force. The single Arbitrator shall be appointed mutually by the parties. Each party shall pay their own costs and fees of the arbitration and the cost of the arbitrator shall be borne equally. The seat or place of the arbitration shall be at ________, Andaman and Nicobar Islands.
27.2. The Agreement shall be governed in accordance with the laws of India and the courts of ________, Andaman and Nicobar Islands will have the exclusive jurisdiction.
28. LEGAL FEE AND COSTS
In the event of any legal action by any Party to enforce any one or more provisions of this Agreement, whether at law or in equity, the prevailing party shall be entitled to receive from the other party all enforcement costs including, without limitation, reasonable legal fees and costs whether incurred before, during and after the trial or other litigation including appeal.
29. SURVIVAL OF OBLIGATION
Notwithstanding any other provisions of this Agreement, at termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination, expiration or completion shall remain in provisions that are explicitly stated to survive termination, expiration or completion shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive termination, expiration or completion.
30. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument.
31. ENTIRE AGREEMENT
Both the parties represent and agree that they have read this Agreement, and understand its terms and the fact that it releases all claims each might have entered into this Agreement without duress or coercion from any source. This Agreement supersedes all other Agreements entered into between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on ________.
1.
____________________
2.
____________________
WITNESS-1
Name: _____________________________
Address: ___________________________
___________________________________
___________________________________
Signature
WITNESS-2
Name: _____________________________
Address: ___________________________
___________________________________
___________________________________
Signature
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