Shareholders\' Agreement Sample 1
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] ACN [ ] of [
] ACN [ ] of [
] ACN [ ] of [
] (Existing Shareholders)
The Investor is a shareholder in the Company with effect from the date of this agreement.
All parties have agreed to enter into this agreement for the purpose of recording the terms of this arrangement and their respective relationships with each other.
Operative provisions 1
Composition of the Board
The Board 1.1
Subject to clause 1.2, the Shareholders are entitled to appoint the following number of Directors: Shareholder
Number of Directors
Shareholders holding more than 50% of the Investor Shares
Shareholders holding more than 50% of the Ordinary Shares
Such Shareholders will continue to be entitled to appoint that number of Directors so long as it they hold such shareholdings in the Company.
The Shareholders may remove any Director appointed by them under clause 1.1 and replace that Director or fill any vacancy in respect of any of their appointees with another nominee by notice in writing to the Company and each other Shareholder. The appointee must not be disqualified from acting as a Director under the Corporations Act 2001 (Cth).
Otherwise, the Directors are to be appointed in accordance with the terms of the Constitution.
Director is nominee of the appointing Shareholder 1.5
Each party acknowledges that a Director appointed by Shareholders under clause 1.1 is the nominee of such Shareholders.
So long as an honest and reasonable director can form the view that they are acting in good faith and in the best interests of the Company as a whole, a Director appointed by Shareholders under clause 1.1 may do each of the following: 1.6.1
Have regard to and represent the interests of those Shareholders.
Act on the wishes of those Shareholders in performing any of the Director's duties or exercising any power, right or discretion as a Director.
No removal of a party's appointee by the other parties 1.7
A Shareholder must not put forward or instigate a resolution for the removal from the Board of a Director appointed by other Shareholders. A Shareholder must vote against a resolution proposed at a meeting of the Shareholders for the removal of a Director appointed by other Shareholders. This does not apply if the appointee is disqualified from acting as a director under the Corporations Act 2001 (Cth) or the Constitution.
Basic financial information 2.1
The Company will provide promptly to each Major Investor: 2.1.1
Annual unaudited financial statements for each Financial Year, including an unaudited balance sheet as of the end of such Financial Year, an unaudited statement of operations and an unaudited statement of cash flows of the Company for such year, all prepared in accordance with generally accepted accounting principles and practices.
Quarterly unaudited financial statements for each quarter of a Financial Year of the Company (except the last quarter of the Company’s Financial Year), including an unaudited balance sheet as of the end of such quarter, an unaudited statement of operations and an unaudited statement of cash flows of the Company for such quarter, all prepared in accordance with generally accepted accounting principles and practices, subject to changes resulting from normal year-end audit adjustments.
If the Company has audited records of any of the foregoing described in clause 2.1, it shall provide those in lieu of the unaudited versions.
Confidential information 2.3
Notwithstanding anything in this agreement to the contrary, no Investor by reason of this agreement shall have access to any trade secrets or confidential information of the Company.
The Company shall not be required to comply with any information rights in respect of any Investor whom the Company reasonably determines to be a competitor or an officer, employee, director or holder of 10% or more of the equity of a competitor.
Investor obligations 2.5
Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this agreement other than to any of the Investor’s legal advisers, accountants, consultants, and other professionals, to the extent necessary to obtain their services in connection with monitoring the Investor’s investment in the Company.
Inspection rights 2.6
The Company shall permit each Major Investor to visit and inspect the Company’s properties, to examine its books of account and records and to discuss the Company’s affairs, finances and accounts with its officers, all at such reasonable times as may be requested by such Investor.
Powers of decision
Decisions requiring unanimous agreement of the Shareholders 3.1
An amendment to the Constitution can only be made by unanimous agreement of the Shareholders.
Decisions requiring special majority resolution 3.2
The following matters can only be undertaken with prior approval given by passing a special majority resolution in accordance with clause 3.3: 3.2.1
Any alteration of the rights of holders of Investor Shares.
Creation of any new class of Preference Shares having rights senior to or on parity with the Investor Shares.
Redeem, buy back, cancel or undertake a capital reduction of any share capital or other securities of the Company.
Declare or pay any dividend.
Issue any securities other than in accordance with clauses 4 and 5.
Appoint any directors other than in accordance with clause 1.1.
Apply for voluntary liquidation, winding-up or de-registration of the Company except as permitted under this agreement.
Make a material change in the nature of the Company's business.
Start or settle any legal or arbitration proceedings, except in the ordinary course of business.
For a resolution to be passed by a special majority it must satisfy both the following criteria: 3.3.1
It is passed by a majority of Directors.
It is approved by the Shareholders holding more than 50% of the Investor Shares.
If the Company has any Subsidiaries then this clause will have application to each Subsidiary so that no Subsidiary may take an action specified in clause 3.2 unless there has been a special majority resolution in favour of it.
Issues of New Securities
If the Board resolves to make an issue of New Securities, it must give written notice of such intention to the Major Investors setting out the terms of the proposed issue of New Securities.
Within 10 business days each Major Investor may give written notice to the Company that it wishes to acquire its Respective Proportion of the New Securities on the same terms.
Within 120 days thereafter the Company may issue on the same terms as offered to the Major Investors any New Securities not acquired by the Major Investors pursuant to clause 4.2.
In the event that the Company has not issued the New Securities within such one 120 day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Major Investors pursuant to this clause 4.
In the event that the Company issues New Securities to a third party under clause 4.3 and such New Securities have rights, preferences or privileges that are more favourable to the Shareholder than the terms of the Investor Shares, the Company shall take such action in accordance with all laws to provide substantially equivalent rights for the Investors in relation to the Investor Shares as are attached to the New Securities (with appropriate adjustment for economic terms or other contractual rights and subject to such Investor’s execution of any relevant documents executed by the holders of the New Securities in subscribing for the New Securities).
Issue of Delayed Vesting Shares, Accelerated Vesting and Sale Preference
Issue of Delayed Vesting Shares 5.1
Subject to the Vesting Criteria being satisfied up to and including the relevant date of issue, the Board will ensure that the Delayed Vesting Shares are issued to the Existing Shareholders in the numbers, on the dates and otherwise in accordance with the terms of schedule 1.
On and from the date (if any) that the Vesting Criteria cease to be satisfied by an Existing Shareholder, all rights of that Existing Shareholder to receive further Delayed Vesting Shares immediately cease.
Subject to the other terms of this agreement, the Delayed Vesting Shares shall be deemed to have the voting rights from the date of this agreement as if all Delayed Vesting Shares had been issued to the relevant Existing Shareholder.
The Investor (and the Existing Shareholders as against each other) waive all rights of pre-emption which they may have (whether under this agreement the Company's constitution, or otherwise) in respect of the allotment and issue to the Existing Shareholders of the Delayed Vesting Shares.
Accelerated Vesting 5.5
If an Accelerated Vesting Event occurs, the balance of the Delayed Vesting Shares shall be promptly issued to the Existing Shareholders.
Sale Preference 5.6
If there is a sale of all of the Shares to a third party, the Shareholders agree that they will take all necessary actions so that out of the proceeds of the purchase price for all of the Shares, the holders of the Investor Shares may elect by notice in writing to the other Shareholders to receive an amount, in priority to payments from such purchase price to any other Shareholders, equal to the aggregate of the following: 5.6.1
The amount paid up on the Investor Shares.
The amount of all dividends declared but unpaid in respect of the Investor Shares.
Issue of Employee Options
The Board may issue Employee Options up to the Employee Option Maximum on such terms as the Board approves from time to time.
Restrictions on transfer of Shares
A Shareholder must not Dispose of any Shares, except:
in accordance with this agreement; or
with the consent of each other Shareholder.
Any transfer not in accordance with this clause 7 has no effect.
General pre-emptive rights 7.3
If this clause 7 applies, where a Shareholder (Selling Shareholder) seeks to Dispose of some or all of its Shares, it must first give to the Company written notice that it wishes to do so (Transfer Notice).
The Transfer Notice must state:
the total number of Shares for sale by the Selling Shareholder (Sale Shares);
the price per Sale Share;
whether the sale is conditional or not and, if conditional, the conditions;
the period during which the invitation to the other Shareholders (Remaining Shareholders) to make an offer to purchase the Sale Shares is open (Offer Period), which (unless otherwise agreed by all Shareholders) must not be less than 20 Business Days; and
if applicable, the name of any proposed buyer of the Sale Shares and a statement that the proposed sale to the buyer is on an arm's length basis.
A Transfer Notice: 7.5.1
is an offer to the Remaining Shareholders to agree to buy the Sale Shares on the terms of the Transfer Notice;
is irrevocable (unless otherwise agreed by all Shareholders);
constitutes the Board as the agent of the Selling Shareholder for the transfer of the Sale Shares in accordance with this agreement.
When the Company receives a Transfer Notice, the Board must promptly give written notice (Board Offer Notice) to all other Shareholders offering the Sale Shares as follows: 7.6.1
If the Sale Shares comprise all the Shares in a Class, they must be offered to the holders of the Shares in all other Classes in proportion to their existing holdings in the other Class or Classes and in accordance with this clause 7.
If the Sale Shares are only part of the Shares in a Class of Shares, they will first be offered to the holders of the remaining Shares in that Class in proportion to their existing holding in that Class. If any of the Sale Shares
remain unallocated, they will be offered to the holders of Shares in all other Classes, in each case, in proportion to their existing holdings in the other Class or Classes and in accordance with this clause 7. 7.7
Any Board Offer Notice must include a copy of the Transfer Notice and must contain the following additional information: 7.7.1
the number of Sale Shares that the Shareholder is entitled to purchase;
the date by which the Company requires a response, after which time the Board Offer Notice is automatically revoked; and
if the Shareholder wishes to purchase Shares in excess of the Shareholder's entitlement, the Shareholder must, when accepting the offer, state the number of excess Shares that the Shareholder wishes to purchase.
The Remaining Shareholder may, during the Offer Period, accept the offer for it to buy some or all of the Sale Shares on the terms of the Board Offer Notice by giving to the Company, at its registered office, an acceptance notice (Acceptance Notice).
An Acceptance Notice given by the Remaining Shareholder constitutes an acceptance by the Remaining Shareholder of the offer by the Selling Shareholder to buy Sale Shares as set out in the Acceptance Notice.
The Board must allocate the Sale Shares in accordance with the principles set out in clause 7.6.
If all the Remaining Shareholders do not claim their full entitlements, the unclaimed Sale Shares must first be used to satisfy any requests for excess Shares made by the accepting Remaining Shareholders in that Class.
If there are insufficient unclaimed Sale Shares to satisfy such requests, the unclaimed Sale Shares must be allocated to the accepting Remaining Shareholders in the Class who requested excess Shares in proportion to their existing holdings in the Class. However, no accepting Remaining Shareholder may be allocated more excess Shares than the number requested by that accepting Remaining Shareholder.
If any Sale Shares remain unallocated after this process, the remaining unclaimed Sale Shares must then be used to satisfy requests for excess Shares made by accepting Remaining Shareholders in the other Class or Classes. If there are insufficient remaining Sale Shares to satisfy such requests, the unclaimed Shares must be allocated to the accepting Remaining Shareholders in the other Class or Classes in proportion to their existing holdings in the other Class or Classes. However, no accepting Remaining Shareholder may be allocated more excess Shares than the number requested by that accepting Remaining Shareholder.
The Shareholders and the Company must ensure that completion of the transfers of the Sale Shares takes place within 20 Business Days of the date of the Acceptance Notice.
On completion: 7.15.1
the Remaining Shareholders must buy their accepted Sale Shares and pay the price for those accepted Sale Shares in Immediately Available Funds to the Selling Shareholder;
the Selling Shareholder must transfer to the Remaining Shareholders their accepted Sale Shares free from any Encumbrances and with all rights, including dividend rights, attached or accruing to those Sale Shares as at the date of the Acceptance Notice, and deliver to the Remaining Shareholders executed transfers for their respective accepted Sale Shares; and
the Company must register the Remaining Shareholder as the holder of its accepted Sale Shares.
The Transfer Notice contains a condition that, unless all Sale Shares are sold, none of the Sale Shares will be sold (Condition); and
The Condition is not satisfied;
then the Company must inform the Selling Shareholder of this within 2 Business Days of the end of the Offer Period and the Selling Shareholder is not obliged to transfer any Sale Shares to the Remaining Shareholders. The Selling Shareholder may waive the Condition, provided the waiver is:
for the benefit of the Remaining Shareholders; and
given to the Company.
The Transfer Notice contains the Condition; and
The Condition is not satisfied;
then the Selling Shareholder may within 120 Business Days of the date of the Transfer Notice sell some or all of the Sale Shares (or of the remaining Sale Shares, if the Condition has been waived) to any person at a price not less than and on terms no more favourable to that person than the price or terms contained in the Transfer Notice. 7.18
If the Transfer Notice does not contain the Condition and the Remaining Shareholders have accepted less than all of the Sale Shares then the Selling Shareholder may within 120 Business Days of the date of the Transfer Notice sell some or all of the balance of the Sale Shares to any person at a price not less than and on terms no more favourable to that person than the price or terms contained in the Transfer Notice.
Deed of Accession
The Company must not allot or issue or register a transfer of any Shares to any person who is not a party to this agreement until that person has executed and delivered to the Company a Deed of Accession.
Any allotment, issue or transfer is void and of no effect unless and until the relevant Deed of Accession has been delivered.
Each party must keep confidential the terms of this agreement, the contents of all negotiations leading to its preparation and any other information relating to the Company or to another Shareholder that it obtains as a result of this agreement or anything done under it (Confidential Information), and must not disclose or permit the disclosure of such Confidential Information to any other person. If a party becomes aware of a breach of this obligation, that party will immediately notify the other parties.
Further permitted use and disclosure 9.2
This agreement does not prohibit the disclosure of Confidential Information by a party in the following circumstances: 9.2.1
The other parties have consented to the disclosure of the relevant Confidential Information.
The disclosure is to a professional adviser in order for it to provide advice in relation to matters arising under or in connection with this agreement and the party disclosing the Confidential Information ensures that the professional adviser complies with the terms of this clause.
The disclosure is required by applicable law or regulation.
Obligations to continue after agreement ends 9.3
All obligations of confidence set out in this agreement continue in full force and effect after this agreement ends.
Giving notices 10.1
Any notice or communication given to a party under this agreement is only given if it is in writing and sent in one of the following ways: 10.1.1
Delivered or posted to that party at its address and marked for the attention of the relevant department or officer (if any) set out below.
Faxed to that party at its fax number and marked for the attention of the relevant department or officer (if any) set out below.
[Shareholder 1] Name:
[Shareholder 2] Name:
Change of address or fax number 10.2
If a party gives the other party three business days' notice of a change of its address or fax number, any notice or communication is only given by that other party if it is delivered, posted or faxed to the latest address or fax number.
Time notice is given 10.3
Any notice or communication is to be treated as given at the following time: 10.3.1
If it is delivered, when it is left at the relevant address.
If it is sent by post, two (or, in the case of a notice or communication posted to another country, nine) business days after it is posted.
If it is sent by fax, as soon as the sender receives from the sender's fax machine a report of an error free transmission to the correct fax number.
However, if any notice or communication is given, on a day that is not a business day or after 5pm on a business day, in the place of the party to whom it is sent it is to be treated as having been given at the beginning of the next business day.
Approvals and consents 11.1
Unless this agreement expressly provides otherwise, a party may give or withhold an approval or consent in that party's absolute discretion and subject to any conditions determined by the party. A party is not obliged to give its reasons for giving or withholding a consent or approval or for giving a consent or approval subject to conditions.
Assignments and transfers 11.2
A party must not assign or transfer any of its rights or obligations under this agreement without the prior written consent of each of the other parties.
Except as otherwise set out in this agreement, each party must pay its own costs and expenses in relation to preparing, negotiating, executing and completing this agreement and any document related to this agreement.
Entire agreement 11.4
This agreement contains everything the parties have agreed in relation to the subject matter it deals with. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this agreement was executed.
Execution of separate documents 11.5
This agreement is properly executed if each party executes either this document or an identical document. In the latter case, this agreement takes effect when the separately executed documents are exchanged between the parties.
Further acts 11.6
Each party must at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this agreement and all transactions incidental to it.
Governing law and jurisdiction 11.7
This agreement is governed by the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
Inconsistency with Constitution 11.8
If there is any inconsistency between this agreement and the Constitution then the parties agree to abide by this agreement and to do everything required to change the Constitution so that it is consistent with this agreement.
No partnership or agency 11.9
Nothing contained or implied in this agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act,
represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation. Variation 11.10
No variation of this agreement will be of any force or effect unless it is in writing and signed by the parties to this agreement.
A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement does not amount to a waiver.
Definitions and interpretation
In this agreement the following definitions apply: Accelerated Vesting Event means a Sale Event or an IPO. ASX means, as the context requires: (a)
ASX Limited ACN 008 624 691 and any successor body corporate; or
the financial market operated by the body corporate referred to in paragraph (a).
Board means the board of directors for the time being of the Company. Business Sale means the completion of a sale or series of sales by the Company (or any Subsidiary) of all or substantially all of the business and assets of the Company and its Subsidiaries to one or more third parties. Class means a class of Shares having attached to them identical rights, privileges, limitations and conditions. Confidential Information has the meaning set out in clause 9.1. Constitution means the constitution of the Company. Deed of Accession means a deed of accession in the agreed form pursuant to which a person who acquires Shares agrees to be bound by the terms of this agreement.
Delayed Vesting Shares means the Ordinary Shares to be issued to the Existing Shareholders as set out in clause 5 and schedule 1, subject to the Vesting Criteria being satisfied on the relevant date of issue. Directors means the directors for the time being of the Company. Dispose means any dealing with a Share or with any interest in or rights attaching to a Share including to grant options or rights of pre-emption over, sell, transfer, assign, part with the benefit of, declare a trust over, or deal with an ownership interest in a Share. Employee Options means Ordinary Shares or options to acquire Ordinary Shares granted or issued after the date of this agreement to employees, officers, directors, contractors, consultants or advisers to the Company or any Subsidiary of the Company pursuant to incentive agreements, share purchase or share option plans, or similar arrangements that are approved by the Board, the number of which Ordinary Shares or options to acquire Ordinary Shares shall not exceed the Employee Option Maximum. Employee Option Maximum means the number which is equal to fifteen per cent of the issued Shares in the Company. Encumbrance means any mortgage, lien, charge, pledge, assignment by way of security, security interest, title retention, preferential right or trust arrangement, claim, covenant, easement or any other security arrangement or any other arrangement having the same effect. Financial Year means the period of 12 months ending on 30 June in each year. Good Leaver means any Existing Shareholder who ceases to be employed by the Company for any of the following reasons: (a)
death in service;
becoming permanently incapable of discharging efficiently the duties of his employment or any other comparable employment with the Company or a Subsidiary by reason of ill health or infirmity of mind or body, injury or disability (evidenced to the satisfaction of the Board);
dismissal in circumstances which have resulted in a claim against the Company for unfair dismissal where the claim is successful on the grounds that the dismissal was unfair pursuant to Chapter 3, Part 3-2, Divisions 2 and 3 of the Fair Work Act 2009 (Cth).
Investor Share means an "A" Preference Share in the Company. IPO means the admission of all or any of the Company's Shares (or any holding company's shares) to trading on ASX. Major Investor means a holder of Investor Shares who has paid at least $25,000 as the total issue price for all of their Shares. 119965323/0495201/CGD02
New Securities means any securities (including convertible securities) in the Company unissued at the date of this agreement but excluding: (a)
Shares issued or issuable upon conversion of Preference Shares to Ordinary Shares.
Delayed Vesting Shares.
Shares issuable upon exercise of any options or rights to purchase any securities of the Company outstanding as of the date of this agreement and any securities issuable upon the conversion thereof.
Shares issued pursuant to a share split.
Employee Options up to the Employee Option Maximum.
Ordinary Share means an ordinary share in the Company. Redundancy means in respect of an Existing Shareholder the termination of the Existing Shareholder's employment with the Company or any Subsidiary by reason of a restructure or a state of affairs within the Company or the Subsidiary whereby the position previously occupied by that person no longer exists within the Company or the Subsidiary and where the Board in its absolute discretion determines that such an event qualifies as a redundancy for the purposes of these Rules. Respective Proportion means the number of Shares held by a Shareholder divided by the total number of Shares. Sale Event means a Share Sale, a Business Sale or an IPO. Shareholders means the shareholders in the Company and includes any person who subsequently becomes a shareholder and who adheres to this agreement. Shares means shares in the Company, including the Ordinary Shares and the Investor Shares. Share Sale means an acquisition of Shares by way of transfer which results in one or more third parties holding Shares having a right to exercise more than [50%] of the votes which may be cast on a poll at a general meeting of the Company on all, or substantially all, matters. Subsidiary has the meaning given to that term in the Corporations Act 2001 (Cth) but also includes an entity that would be considered a subsidiary under generally accepted accounting principles. Vesting Criteria means the Existing Shareholder is employed by the Company at the relevant time, or is a Good Leaver. Interpretation 12.2
In the interpretation of this agreement, the following provisions apply unless the context otherwise requires:
Headings are inserted for convenience only and do not affect the interpretation of this agreement.
A reference in this agreement to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in Sydney.
If the day on which any act, matter or thing is to be done under this agreement is not a business day, the act, matter or thing must be done on the next business day.
A reference in this agreement to dollars or $ means Australian dollars and all amounts payable under this agreement are payable in Australian dollars.
A reference in this agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
A reference in this agreement to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced.
A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this agreement.
An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
A word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
References to the word 'include' or 'including' are to be construed without limitation.
Any schedules and attachments form part of this agreement.
Execution and date Executed as an agreement. Date: [Insert execution clauses]
Schedule 1 Name of Existing Shareholder
Number of Ordinary Shares issued/to be issued
i) the date of this agreement
 [Adjust downwards to the extent that shares have already been issued to the Existing Investor prior to the date of this agreement] (representing 25% of the Ordinary Shares to be issued to the Existing Investor)
ii) + 6 months from date in i)
 (12.5% of Ordinary Shares)
iii) + 12 months from date in i)
 (12.5% of Ordinary Shares)
iv) + 18 months from date in i)
 (12.5% of Ordinary Shares)
i) + 24 months from date in i)
 (12.5% of Ordinary Shares)
vi) + 30 months from date in i)
 (12.5% of Ordinary Shares)
vii) + 36 months from date in i)
 (12.5% of Ordinary Shares)
925 (100% of ordinary shares and 92.5% of all Shares)