SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT is made on ________.
BETWEEN
________, a private limited liability company incorporated under the laws of the Federal Republic of Nigeria, with registration number: ________ and having its principal place of business at the following address:
________
(hereinafter referred to as the "Company")
AND
________, having its address as follows:
________
(hereinafter referred to as "Investor")
WHEREAS
A. The Company has a share capital of ₦ (________) and (________) shares of which (________) shares are unissued.
B. The Company is desirous of allotting the Subscription Shares to the Investors and the Investor is willing to subscribe to its respective proportion of the Subscription Shares and pay the Consideration as agreed between the Parties.
1. DEFINITIONS
"Act" means the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004.
"Agreement" means this Share Subscription Agreement.
"Authorization" means any consent, registration, filing agreement, certificate, licence, approval, permit, authority or exemption from, by or with, any authority and all corporate, creditors and shareholders approvals or consent.
"Business" means the business of the Company as specified in the Company's Articles.
"Business Day" means a day (other than a Saturday, Sunday or public holiday declared by the Federal Government of Nigeria) on which banks are open for general business in Nigeria.
"CAC" means the Corporate Affairs Commission, established pursuant to the Act.
"Completion" means the process of completing the sale and purchase of the Shares in accordance.
"Completion Date" means the date by which all the requirement for completion have been fulfilled and that is on ________.
"Consideration" means the sum to be paid by the Investors in exchange for the Subscription Shares.
"Encumbrance" means any mortgage, charge (whether fixed or floating), pledge, lien option, right of retention of title or any other form of security interest or any obligation (including any conditional any conditional obligation) to create any of the same.
"Full Title Guarantee" means the Company's right to allot Subscription Shares with good title and free from any Encumbrance.
"Material Adverse Change" means any change that may adversely affect:
(I) the assets, business, liabilities, financial condition and operation of the Company;
(II) the ability of the Company to perform its obligations under this Agreement; and
(III) the validity and enforceability of this Agreement.
"Subscription Shares" means the ordinary shares at ₦________ (________) each which shall be issued to the Investor under this Agreement.
"Transaction" means the subscription of shares by the Investor.
2. AGREEMENT FOR SUBSCRIPTION OF THE SUBSCRIPTION SHARES
a. Subject to the terms of this Agreement, the Company hereby agrees to issue ordinary shares to the Investor.
b. The Company, with Full Title Guarantee, agrees and undertakes to allot the Subscription Shares free from all encumbrance to the Investor and from the Completion Date, all rights, titles and beneficial interest attaching or accruing on the Subscription Shares, including any dividend distributions shall unconditionally become the property of the Investor.
3. CONSIDERATION
The total Consideration for the Subscription Shares shall be ₦________ (________).
4. TERMS OF PAYMENT AND POSSESSION
a. The Consideration shall be paid in equal installments.
b. The Investor shall pay the sum of ₦________ (________) every week for a period of ________ (________) weeks.
c. The first installment shall be paid on ________.
d. The above payment shall be made by the Investor to the Company by cash.
5. OWNERSHIP AND TITLE TO THE SUBSCRIPTION SHARES
a. The Company shall on the Completion Date, transfer the ownership and title to the Subscription Shares to the Investor on the date of payment. Provided that the Investor shall not be responsible for any liability previously incurred by the Company prior to the Completion Date.
b. The Investor shall not own or exercise any ownership rights or benefits over any part of the Subscription Shares for which the Company has not received payment.
6. CONDITION PRECEDENT
The Investor shall not pay the Consideration and subscribe for the Subscription Shares unless the following conditions are satisfied:
(I) this Agreement and any other agreement entered into by the Parties in connection with the Share Subscription by the Investor have been duly executed by all the Parties;
(II) the authorized share capital of the Company has increased;
(III) the shareholders have approved the allotment of the Subscription Shares;
(IV) the warranties shall be true and correct and not misleading in any material respect as though it was made on the Completion Date;
(V) each of the Parties has complied with and performed all the obligations and conditions contained in this Agreement that is required before Completion;
(VI) all required permits, consents, and approval for the Transaction contemplated in this Agreement, including all internal approval from the shareholders and directors of the Company, approvals from regulatory and administrative bodies have been obtained to the Investor, the Investor's satisfaction;
(VII) the Investor, the Investor have conducted a due diligence on the Company and all findings made by the Investor, the Investor regarding the Company's financial affairs, account, legal, and other relevant
(VIII) all relevant reports and documentations relating to the Company are satisfactory and acceptable to the Investor, the Investor;
(IX) no Adverse Material Changes in relation to the Company;
(X) the Board of Directors have passed a resolution approving the: i. execution of the Shareholder's Agreement; and ii. the amendment of the Articles of the Company to reflect the new share structure.
7. COMPLETION
a. This Transaction will be closed on ________.
b. The closing will take place at the following:
________
c. The sale and purchase shall be completed when:
(I) the conditions precedents to the transfer of the ownership has been satisfied in full or waived by mutual agreement;
(II) the Investor has has paid the full Consideration for the Subscription Shares;
(III) a new share certificate has been delivered to the Investor.
8. POST-COMPLETION OBLIGATIONS
The Parties have the following obligations upon completion:
(I) registration of the Investor as a shareholder of record in the books of the Company shall be effected.
(II) the Company shall make all such necessary filings at the Corporate Affairs Commission as is necessary to give effect to the changes in the shareholding structure of the Company, including the filing of the Form CAC 2A (Return of Allotment) in respect of the share transfer to the Investor, as well as any other fillings required to give full effect to this Transaction;
(III) the Company shall deliver to the Investor, all documents of title, records, correspondence, documents, files and other papers relation to this Transaction.
9. REPRESENTATIONS AND WARRANTIES OF COMPANY
a. The Company hereby covenants and represents to the Investor as follows:
(I) that the Company has taken all the necessary corporate actions required by its organizational documents to permit it to enter and perform its obligations under this Agreement and other Transaction Documents;
(II) that it is a Company which is duly organized and validly existing under the laws of the Federal Republic of Nigeria and it has the legal right and capacity to enter into this Agreement and perform its obligations here under and is not in violation of any laws of the Federal Republic of Nigeria or any regulation or order to which it may be subject to and that upon the execution of this Agreement by the Investor, the Agreement shall be valid, binding and enforceable upon all the Parties to the Agreement;
(III) that there are no pending legal proceedings threatened against the Company or any other legal impediments which could adversely affect the validity and enforceability of the allotment of the Subscription Shares to the Investor. The Company is not subject to any order, writ, injunction or any other order of any court, government or regulatory authority which could adversely affect the validity of the allotment of the Subscription Shares;
(IV) that there are no Material Adverse Changes which would have and adverse effect on the Company's capacity to allot the Subscription Shares.
b. The Company also covenants not to do as follows between the date of this Agreement and the Closing Date:
(I) sell, lease, pledge, mortgage or otherwise dispose or the Subscription Shares;
(II) enter into any contract, agreement, commitment or option with involves the allotment of the Subscription Shares with any other Party other than the Investor.
10. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company as follows:
(I) that the Investor has the full power and authority to enter and perform this Agreement and any other agreement which constitute the binding obligations under this Agreement;
(II) that the Investor is not bankrupt and unable to pay its debt.
(III) that the the Investor has the financial capability to pay the Consideration for the Subscription Shares;
(IV) that the execution, delivery and performance of this Agreement is not impaired by any other valid agreement to which it is a party.
11. INDEMNITY
Each Party hereby undertakes to indemniy and hold each other harmless against any costs, losses, claims, damages, expenses, liabilities (joint or several) or actions in respect thereof, which the other Party may incur in the event that any Representation or Warranties by the Party contained in this Agreement which turns out inaccurate or if any Party is in breach of the covenants contained in this Agreement.
12. TERMINATION
This Agreement may be terminated as follows:
a. By the Parties where they mutually agree that the Agreement should be terminated;
b. By the Company where the Investor fails to pay for the Subscription Shares on the Completion Date or is in Investor breaches any fundamental term in this Agreement.
c. By the Investor if:
(I) the Company is unable to satisfy the condition precedent;
(II) prior to the Completion Date, any Material Adverse Change occurs or the Investor becomes aware of any breach by the Company of any fundamental term in this Agreement.
d. If the Investor exercises the right to terminate the Agreement under clauses (I) and (II) above, the Company shall not have any claim against the Investor arising for any damages as a result of the termination.
e. If the Company exercises the right to terminate under clause (b) above, the Company shall in addition to any damages payable, be entitled to injunctive and other equitable reliefs.
f. Any Party wishing to terminate this Agreement pursuant to the clauses above, shall deliver a written notice of its intention to the other Party.
13. REMEDIES
a. In the event of non-performance by the Investor of any of its obligations under this Agreement, the Company may:
(I) rescind the Agreement, in which event the ownership of the Shares shall not be transferred to the Investor and any Consideration paid shall be refunded to the Investor;
(II) recover liquidated damages to the sum of ________% of the Consideration as damages for breach of contract in addition to all reasonable costs and expenses incurred by the Company;
(III) in addition to any damages payable, the Company shall be entitled to injunctive and other equitable reliefs.
b. The Company may seek recovery of liquidated damages, all reasonable costs and expenses and other injunctive and equitable reliefs notwithstanding the fact that the Company has rescinded the Agreement.
14. COSTS AND EXPENSES
Each Party shall pay their own costs in relation to preparation, negotiation and execution of this Agreement and Transaction Document and each Party shall be responsible for the costs and expenses of their attorneys and advisers.
15. CONFIDENTIALITY OBLIGATIONS
The Investor acknowledges that they may have access to certain non-public information (the "Confidential Information") and commercially valuable information (the "Trade Secret Information") regarding the business operation of the Company. The Parties also acknowledge that depending on the circumstance, they may disclose Confidential Information or Trade Secret Information (the "Disclosing Party") or receive such information (in which case, they become the "Receiving Party"). In such terms, this confidential provisions shall be binding on the Receiving Party and enforceable by the Disclosing Party.
Confidential Information includes all information or materials of whatever nature relating to the purpose disclosed by the Parties by sharing any written material or any oral or written statement whatsoever which includes but not limited to documents, techniques, practices, tools, specifications, inventions, patents, trademark, soft wares, drawings, programmes but shall not include the following information or data:
(I) which can be established by written records to be already known to the Receiving Party or the public at the time of the disclosure;
(II) which enters the public domain through no fault of the Receiving Party;
(III) is given by the Disclosing Party to third parties without any restrictions;
(IV) is given to the Receiving Party by any third party who is in possession of such information and has the legal right to disclose it; or
(IV) that is required by law or regulation to be disclosed.
Trade Secret Information includes all formulas, pattern, designs, process, methods or other information that is not known or easily ascertainable to the general public. The Parties hereby agree as follows:
(I) not to distribute, disclose, reproduce or otherwise communicate any confidential information to any person or entity other than the related parties to this Agreement;
(II) not to make public or disclose in whole or part, any information relating to the practice, business dealings or other matters relating to the Company;
(III) not to use the Confidential Information for any purpose other than for the performance of their duties and responsibilities to the Company;
(IV) not to disclose the Trade Secret Information or Confidential Information during and after the termination of this Agreement for as long as it remains a trade secret.
The Parties agree that this clause shall survive the termination or expiration of this Agreement and shall continue to be binding on all the Parties after the Investor's relationship with the Company has been terminated.
16. FORCE MAJEURE
a. Neither party shall before the Completion Date be liable for any failure to fulfill any term of this Agreement if the fulfillment has been delayed, hindered, interfered with or prevented by force majeure which for the purposes of this Agreement shall mean any circumstances:
(I) which is beyond a party's control;
(II) which such party could not have reasonably avoided or overcome; and
(III) which is not attributable to the other party.
b. Without prejudice to the generality of the foregoing, force majeure shall include the following events and circumstances:
(I) war, hostilities, or invasion;
(II) rebellion, terrorism, revolution, insurrection, military or usurped power
(III) riot,civil disorder or other acts which may reasonably affect the ability of the party to fulfill its obligations under this Agreement.
17. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with the laws of the Federal Republic of Nigeria.
18. JURISDICTION
The Parties agree that the Nigerian courts shall have the exclusive jurisdiction to settle any dispute or claim in connection with this contract.
19. ASSIGNMENT
Neither of the Parties may assign nor transfer any of its rights, benefits or obligations under this Agreement.
20. ENTIRE AGREEMENT
This Agreement and any other document referred to in this Agreement, constitute the entire agreement between the Parties and supersedes any prior written or oral agreements made between them.
21. WAIVERS
Any term or provision of this Agreement may be waived in writing at any time by the Party entitled to such benefit. No delay, omission to exercise any right shall not be construed as waiver.
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26. NOTICES
a. All notices or communication given or made under this Agreement shall be in writing.
b. Any of such notice or communication shall be deemed to have been given if:
(I) sent by personal delivery, upon delivery at the address of the relevant Party;
(II) sent by courier service, upon receipt of confirmation of delivery;
(III) sent by facsimile, upon receipt of a confirmation of transmission.
c. The addresses for service of notices are as follows:
In the case of the Company to:
________
Address: ________
Attention:
Email:
In the case of the Investor:
________
Address: ________
Email: ________
IN THE WITNESS WHEREOF the Parties have executed this Agreement the day and year first written above.
The Common Seal of the within named ________
is hereunto affixed in the presence of:
____________________________
DIRECTOR
____________________________
DIRECTOR/SECRETARY
SIGNED by the within named Investor
_________________________
________
in the presence of:
Name................................................................................................................
Address.............................................................................................................
Occupation........................................................................................................
Signature..........................................................................................................
SCHEDULE
WARRANTIES
1. Incorporation and Power of the Company
The Company is a private company limited by shares, duly incorporated and validly existing under the laws of the Federal Republic of Nigeria and has the corporate power and has obtained the authorization to conduct its business as presently conducted and to enter into and comply with obligations under this Agreement and any other agreement referred to in this Agreement.
2. Memorandum and Articles of Association of the Company
The business and affairs of the Company are being conducted in accordance with its Articles. The Memorandum and Articles are true, up to date and correct copy of what has been delivered to the Investor.
3. Books and Records
The books and record of the Company, including without limitation, its register of members, register of directors and secretary, minutes books, are complete and correct in all material respects and accurately and fairly reflect all meetings and corporate actions of the Company's shareholder and Board of Directors, company secretary and the nature of the transactions of the Company.
4. Due Authorization
a. The Company has full power, capacity, authority and legal right to carry on its business as now conducted and to perform the obligations under this Agreement.
b. The execution, delivery and performance of this Agreement and any other referred in this Agreement and the consummation of this Agreement hereby are within its corporate powers, and have been duly authorized by all corporate actions and the parties executing and delivering this Agreement have been duly authorized to do so.
c. The Company has obtained all the authorizations required to execute, perform and comply with all its obligations under this Agreement and the Transaction is validly authorized by all the necessary corporate actions of the Company and upon Completion, the Shares will be transferred to the Investor, free from Encumbrances.
5. Title to Shares
The Company has good title to all the Subscription Shares owned by it and the Subscription Shares are free and clear of any lien. The Subscription Shares are not subject to any outstanding option, warrant, call, preemptive right or similar right of any party to acquire same, or any lien except for the restrictions imposed by applicable Federal and State securities laws. Upon Completion, title to the Subscription Shares shall be transferred to the Investor.
6. No Conflict
The Company's execution and performance of its obligations under this Agreement does not:
(I) conflict with any term and conditions of an agreement to which the Company is a party or by which it is bound;
(II) violate the provisions of the Articles of the Company;
(III) violate any authorization, judgement, order or any statue or regulation applicable to the Company;
(IV) result in the creation or imposition of any lien upon the Shares of the Company.
7. Material Adverse Change
No event or condition that can have a Material Adverse Change on the Company has occurred.
8. Litigation
a. The Company is not engaged in any litigation, arbitration or any administrative proceedings, the outcome of which may have a Material Adverse Change on the Transaction.
b. No judgement or order has been issued by any court, tribunal or any administrative body which may have a Material Adverse Change on the Transaction.
9. Compliance with Law
The Company is in compliance with all laws and has not received any advice or notice of any non compliance to any law or administrative order.
10. Disclosures
This Agreement, certificate or any document delivered in connection with this Transaction contains true statement of material fact.
SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT is made on ________.
BETWEEN
________, a private limited liability company incorporated under the laws of the Federal Republic of Nigeria, with registration number: ________ and having its principal place of business at the following address:
________
(hereinafter referred to as the "Company")
AND
________, having its address as follows:
________
(hereinafter referred to as "Investor")
WHEREAS
A. The Company has a share capital of ₦ (________) and (________) shares of which (________) shares are unissued.
B. The Company is desirous of allotting the Subscription Shares to the Investors and the Investor is willing to subscribe to its respective proportion of the Subscription Shares and pay the Consideration as agreed between the Parties.
1. DEFINITIONS
"Act" means the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004.
"Agreement" means this Share Subscription Agreement.
"Authorization" means any consent, registration, filing agreement, certificate, licence, approval, permit, authority or exemption from, by or with, any authority and all corporate, creditors and shareholders approvals or consent.
"Business" means the business of the Company as specified in the Company's Articles.
"Business Day" means a day (other than a Saturday, Sunday or public holiday declared by the Federal Government of Nigeria) on which banks are open for general business in Nigeria.
"CAC" means the Corporate Affairs Commission, established pursuant to the Act.
"Completion" means the process of completing the sale and purchase of the Shares in accordance.
"Completion Date" means the date by which all the requirement for completion have been fulfilled and that is on ________.
"Consideration" means the sum to be paid by the Investors in exchange for the Subscription Shares.
"Encumbrance" means any mortgage, charge (whether fixed or floating), pledge, lien option, right of retention of title or any other form of security interest or any obligation (including any conditional any conditional obligation) to create any of the same.
"Full Title Guarantee" means the Company's right to allot Subscription Shares with good title and free from any Encumbrance.
"Material Adverse Change" means any change that may adversely affect:
(I) the assets, business, liabilities, financial condition and operation of the Company;
(II) the ability of the Company to perform its obligations under this Agreement; and
(III) the validity and enforceability of this Agreement.
"Subscription Shares" means the ordinary shares at ₦________ (________) each which shall be issued to the Investor under this Agreement.
"Transaction" means the subscription of shares by the Investor.
2. AGREEMENT FOR SUBSCRIPTION OF THE SUBSCRIPTION SHARES
a. Subject to the terms of this Agreement, the Company hereby agrees to issue ordinary shares to the Investor.
b. The Company, with Full Title Guarantee, agrees and undertakes to allot the Subscription Shares free from all encumbrance to the Investor and from the Completion Date, all rights, titles and beneficial interest attaching or accruing on the Subscription Shares, including any dividend distributions shall unconditionally become the property of the Investor.
3. CONSIDERATION
The total Consideration for the Subscription Shares shall be ₦________ (________).
4. TERMS OF PAYMENT AND POSSESSION
a. The Consideration shall be paid in equal installments.
b. The Investor shall pay the sum of ₦________ (________) every week for a period of ________ (________) weeks.
c. The first installment shall be paid on ________.
d. The above payment shall be made by the Investor to the Company by cash.
5. OWNERSHIP AND TITLE TO THE SUBSCRIPTION SHARES
a. The Company shall on the Completion Date, transfer the ownership and title to the Subscription Shares to the Investor on the date of payment. Provided that the Investor shall not be responsible for any liability previously incurred by the Company prior to the Completion Date.
b. The Investor shall not own or exercise any ownership rights or benefits over any part of the Subscription Shares for which the Company has not received payment.
6. CONDITION PRECEDENT
The Investor shall not pay the Consideration and subscribe for the Subscription Shares unless the following conditions are satisfied:
(I) this Agreement and any other agreement entered into by the Parties in connection with the Share Subscription by the Investor have been duly executed by all the Parties;
(II) the authorized share capital of the Company has increased;
(III) the shareholders have approved the allotment of the Subscription Shares;
(IV) the warranties shall be true and correct and not misleading in any material respect as though it was made on the Completion Date;
(V) each of the Parties has complied with and performed all the obligations and conditions contained in this Agreement that is required before Completion;
(VI) all required permits, consents, and approval for the Transaction contemplated in this Agreement, including all internal approval from the shareholders and directors of the Company, approvals from regulatory and administrative bodies have been obtained to the Investor, the Investor's satisfaction;
(VII) the Investor, the Investor have conducted a due diligence on the Company and all findings made by the Investor, the Investor regarding the Company's financial affairs, account, legal, and other relevant
(VIII) all relevant reports and documentations relating to the Company are satisfactory and acceptable to the Investor, the Investor;
(IX) no Adverse Material Changes in relation to the Company;
(X) the Board of Directors have passed a resolution approving the: i. execution of the Shareholder's Agreement; and ii. the amendment of the Articles of the Company to reflect the new share structure.
7. COMPLETION
a. This Transaction will be closed on ________.
b. The closing will take place at the following:
________
c. The sale and purchase shall be completed when:
(I) the conditions precedents to the transfer of the ownership has been satisfied in full or waived by mutual agreement;
(II) the Investor has has paid the full Consideration for the Subscription Shares;
(III) a new share certificate has been delivered to the Investor.
8. POST-COMPLETION OBLIGATIONS
The Parties have the following obligations upon completion:
(I) registration of the Investor as a shareholder of record in the books of the Company shall be effected.
(II) the Company shall make all such necessary filings at the Corporate Affairs Commission as is necessary to give effect to the changes in the shareholding structure of the Company, including the filing of the Form CAC 2A (Return of Allotment) in respect of the share transfer to the Investor, as well as any other fillings required to give full effect to this Transaction;
(III) the Company shall deliver to the Investor, all documents of title, records, correspondence, documents, files and other papers relation to this Transaction.
9. REPRESENTATIONS AND WARRANTIES OF COMPANY
a. The Company hereby covenants and represents to the Investor as follows:
(I) that the Company has taken all the necessary corporate actions required by its organizational documents to permit it to enter and perform its obligations under this Agreement and other Transaction Documents;
(II) that it is a Company which is duly organized and validly existing under the laws of the Federal Republic of Nigeria and it has the legal right and capacity to enter into this Agreement and perform its obligations here under and is not in violation of any laws of the Federal Republic of Nigeria or any regulation or order to which it may be subject to and that upon the execution of this Agreement by the Investor, the Agreement shall be valid, binding and enforceable upon all the Parties to the Agreement;
(III) that there are no pending legal proceedings threatened against the Company or any other legal impediments which could adversely affect the validity and enforceability of the allotment of the Subscription Shares to the Investor. The Company is not subject to any order, writ, injunction or any other order of any court, government or regulatory authority which could adversely affect the validity of the allotment of the Subscription Shares;
(IV) that there are no Material Adverse Changes which would have and adverse effect on the Company's capacity to allot the Subscription Shares.
b. The Company also covenants not to do as follows between the date of this Agreement and the Closing Date:
(I) sell, lease, pledge, mortgage or otherwise dispose or the Subscription Shares;
(II) enter into any contract, agreement, commitment or option with involves the allotment of the Subscription Shares with any other Party other than the Investor.
10. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company as follows:
(I) that the Investor has the full power and authority to enter and perform this Agreement and any other agreement which constitute the binding obligations under this Agreement;
(II) that the Investor is not bankrupt and unable to pay its debt.
(III) that the the Investor has the financial capability to pay the Consideration for the Subscription Shares;
(IV) that the execution, delivery and performance of this Agreement is not impaired by any other valid agreement to which it is a party.
11. INDEMNITY
Each Party hereby undertakes to indemniy and hold each other harmless against any costs, losses, claims, damages, expenses, liabilities (joint or several) or actions in respect thereof, which the other Party may incur in the event that any Representation or Warranties by the Party contained in this Agreement which turns out inaccurate or if any Party is in breach of the covenants contained in this Agreement.
12. TERMINATION
This Agreement may be terminated as follows:
a. By the Parties where they mutually agree that the Agreement should be terminated;
b. By the Company where the Investor fails to pay for the Subscription Shares on the Completion Date or is in Investor breaches any fundamental term in this Agreement.
c. By the Investor if:
(I) the Company is unable to satisfy the condition precedent;
(II) prior to the Completion Date, any Material Adverse Change occurs or the Investor becomes aware of any breach by the Company of any fundamental term in this Agreement.
d. If the Investor exercises the right to terminate the Agreement under clauses (I) and (II) above, the Company shall not have any claim against the Investor arising for any damages as a result of the termination.
e. If the Company exercises the right to terminate under clause (b) above, the Company shall in addition to any damages payable, be entitled to injunctive and other equitable reliefs.
f. Any Party wishing to terminate this Agreement pursuant to the clauses above, shall deliver a written notice of its intention to the other Party.
13. REMEDIES
a. In the event of non-performance by the Investor of any of its obligations under this Agreement, the Company may:
(I) rescind the Agreement, in which event the ownership of the Shares shall not be transferred to the Investor and any Consideration paid shall be refunded to the Investor;
(II) recover liquidated damages to the sum of ________% of the Consideration as damages for breach of contract in addition to all reasonable costs and expenses incurred by the Company;
(III) in addition to any damages payable, the Company shall be entitled to injunctive and other equitable reliefs.
b. The Company may seek recovery of liquidated damages, all reasonable costs and expenses and other injunctive and equitable reliefs notwithstanding the fact that the Company has rescinded the Agreement.
14. COSTS AND EXPENSES
Each Party shall pay their own costs in relation to preparation, negotiation and execution of this Agreement and Transaction Document and each Party shall be responsible for the costs and expenses of their attorneys and advisers.
15. CONFIDENTIALITY OBLIGATIONS
The Investor acknowledges that they may have access to certain non-public information (the "Confidential Information") and commercially valuable information (the "Trade Secret Information") regarding the business operation of the Company. The Parties also acknowledge that depending on the circumstance, they may disclose Confidential Information or Trade Secret Information (the "Disclosing Party") or receive such information (in which case, they become the "Receiving Party"). In such terms, this confidential provisions shall be binding on the Receiving Party and enforceable by the Disclosing Party.
Confidential Information includes all information or materials of whatever nature relating to the purpose disclosed by the Parties by sharing any written material or any oral or written statement whatsoever which includes but not limited to documents, techniques, practices, tools, specifications, inventions, patents, trademark, soft wares, drawings, programmes but shall not include the following information or data:
(I) which can be established by written records to be already known to the Receiving Party or the public at the time of the disclosure;
(II) which enters the public domain through no fault of the Receiving Party;
(III) is given by the Disclosing Party to third parties without any restrictions;
(IV) is given to the Receiving Party by any third party who is in possession of such information and has the legal right to disclose it; or
(IV) that is required by law or regulation to be disclosed.
Trade Secret Information includes all formulas, pattern, designs, process, methods or other information that is not known or easily ascertainable to the general public. The Parties hereby agree as follows:
(I) not to distribute, disclose, reproduce or otherwise communicate any confidential information to any person or entity other than the related parties to this Agreement;
(II) not to make public or disclose in whole or part, any information relating to the practice, business dealings or other matters relating to the Company;
(III) not to use the Confidential Information for any purpose other than for the performance of their duties and responsibilities to the Company;
(IV) not to disclose the Trade Secret Information or Confidential Information during and after the termination of this Agreement for as long as it remains a trade secret.
The Parties agree that this clause shall survive the termination or expiration of this Agreement and shall continue to be binding on all the Parties after the Investor's relationship with the Company has been terminated.
16. FORCE MAJEURE
a. Neither party shall before the Completion Date be liable for any failure to fulfill any term of this Agreement if the fulfillment has been delayed, hindered, interfered with or prevented by force majeure which for the purposes of this Agreement shall mean any circumstances:
(I) which is beyond a party's control;
(II) which such party could not have reasonably avoided or overcome; and
(III) which is not attributable to the other party.
b. Without prejudice to the generality of the foregoing, force majeure shall include the following events and circumstances:
(I) war, hostilities, or invasion;
(II) rebellion, terrorism, revolution, insurrection, military or usurped power
(III) riot,civil disorder or other acts which may reasonably affect the ability of the party to fulfill its obligations under this Agreement.
17. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with the laws of the Federal Republic of Nigeria.
18. JURISDICTION
The Parties agree that the Nigerian courts shall have the exclusive jurisdiction to settle any dispute or claim in connection with this contract.
19. ASSIGNMENT
Neither of the Parties may assign nor transfer any of its rights, benefits or obligations under this Agreement.
20. ENTIRE AGREEMENT
This Agreement and any other document referred to in this Agreement, constitute the entire agreement between the Parties and supersedes any prior written or oral agreements made between them.
21. WAIVERS
Any term or provision of this Agreement may be waived in writing at any time by the Party entitled to such benefit. No delay, omission to exercise any right shall not be construed as waiver.
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26. NOTICES
a. All notices or communication given or made under this Agreement shall be in writing.
b. Any of such notice or communication shall be deemed to have been given if:
(I) sent by personal delivery, upon delivery at the address of the relevant Party;
(II) sent by courier service, upon receipt of confirmation of delivery;
(III) sent by facsimile, upon receipt of a confirmation of transmission.
c. The addresses for service of notices are as follows:
In the case of the Company to:
________
Address: ________
Attention:
Email:
In the case of the Investor:
________
Address: ________
Email: ________
IN THE WITNESS WHEREOF the Parties have executed this Agreement the day and year first written above.
The Common Seal of the within named ________
is hereunto affixed in the presence of:
____________________________
DIRECTOR
____________________________
DIRECTOR/SECRETARY
SIGNED by the within named Investor
_________________________
________
in the presence of:
Name................................................................................................................
Address.............................................................................................................
Occupation........................................................................................................
Signature..........................................................................................................
SCHEDULE
WARRANTIES
1. Incorporation and Power of the Company
The Company is a private company limited by shares, duly incorporated and validly existing under the laws of the Federal Republic of Nigeria and has the corporate power and has obtained the authorization to conduct its business as presently conducted and to enter into and comply with obligations under this Agreement and any other agreement referred to in this Agreement.
2. Memorandum and Articles of Association of the Company
The business and affairs of the Company are being conducted in accordance with its Articles. The Memorandum and Articles are true, up to date and correct copy of what has been delivered to the Investor.
3. Books and Records
The books and record of the Company, including without limitation, its register of members, register of directors and secretary, minutes books, are complete and correct in all material respects and accurately and fairly reflect all meetings and corporate actions of the Company's shareholder and Board of Directors, company secretary and the nature of the transactions of the Company.
4. Due Authorization
a. The Company has full power, capacity, authority and legal right to carry on its business as now conducted and to perform the obligations under this Agreement.
b. The execution, delivery and performance of this Agreement and any other referred in this Agreement and the consummation of this Agreement hereby are within its corporate powers, and have been duly authorized by all corporate actions and the parties executing and delivering this Agreement have been duly authorized to do so.
c. The Company has obtained all the authorizations required to execute, perform and comply with all its obligations under this Agreement and the Transaction is validly authorized by all the necessary corporate actions of the Company and upon Completion, the Shares will be transferred to the Investor, free from Encumbrances.
5. Title to Shares
The Company has good title to all the Subscription Shares owned by it and the Subscription Shares are free and clear of any lien. The Subscription Shares are not subject to any outstanding option, warrant, call, preemptive right or similar right of any party to acquire same, or any lien except for the restrictions imposed by applicable Federal and State securities laws. Upon Completion, title to the Subscription Shares shall be transferred to the Investor.
6. No Conflict
The Company's execution and performance of its obligations under this Agreement does not:
(I) conflict with any term and conditions of an agreement to which the Company is a party or by which it is bound;
(II) violate the provisions of the Articles of the Company;
(III) violate any authorization, judgement, order or any statue or regulation applicable to the Company;
(IV) result in the creation or imposition of any lien upon the Shares of the Company.
7. Material Adverse Change
No event or condition that can have a Material Adverse Change on the Company has occurred.
8. Litigation
a. The Company is not engaged in any litigation, arbitration or any administrative proceedings, the outcome of which may have a Material Adverse Change on the Transaction.
b. No judgement or order has been issued by any court, tribunal or any administrative body which may have a Material Adverse Change on the Transaction.
9. Compliance with Law
The Company is in compliance with all laws and has not received any advice or notice of any non compliance to any law or administrative order.
10. Disclosures
This Agreement, certificate or any document delivered in connection with this Transaction contains true statement of material fact.
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