Beruflich Dokumente
Kultur Dokumente
1. Mr./ Ms. <<Founder1 Name>>, aged about <<Founder1 Age>> years, residing at
<<Founder1 Address>>, which expression shall, unless it be repugnant to the subject
or context thereof, include their legal heirs, successors, nominees and permitted
assignees.
2. Mr./ Ms. <<Founder2 Name>>, aged about <<Founder2 Age>> years, residing at
<<Founder2 Address>>, which expression shall, unless it be repugnant to the subject
or context thereof, include their legal heirs, successors, nominees and permitted
assignees.
Whereas <<Company Name>> is a company incorporated under the laws of India, with
registered office at <<Company Address>>, (hereinafter the "Company"), whose authorized
capital, paid up capital and current shareholding structure is mentioned in Schedule ‘A’.
Whereas the Founders (jointly the “Shareholders” and each individually a “Shareholder”)
shall collectively hold the entire share capital of the Company;
Whereas, the Parties wish to determine their future relationship as Shareholders of the
Company;
1 Preliminary Remarks
The Parties and, to the extent legally possible, the Company wish to agree on certain rules
regarding their mutual rights and obligations regarding their shareholding in the Company
and therefore execute this Founders agreement (hereinafter the "Agreement")
2.2 The Parties acknowledge that in the event of any discrepancy between this
Agreement and the Company's Articles of Association (hereinafter the “AoA”),
the terms of this Agreement shall prevail.
2.3 This Agreement shall not be construed as to create a partnership, joint tenancy
or tenancy in common with regard to Shares held by the Parties. The Parties
shall each remain the sole owner of Shares held by them.
3.2 A resolution passed by at least two thirds of the votes represented and the
absolute majority of the nominal value of the shares represented at the
meeting is required for:
(i) the change of the Company's purpose;
(ii) the creation of shares with privileged voting rights;
(iii) the restriction of the transferability of registered shares;
(iv) the creation and increase of authorized or paid-up share capital;
(v) an increase of capital out of equity, against contributions in kind, or for
the purpose of acquisition of assets, and the granting of special
benefits;
(vi) the limitation or withdrawal of preferential subscription rights;
(vii) the dissolution of the Company without liquidation.
3.3 The Shareholders shall exercise their shareholders' rights, including, but not
limited to, voting rights in the Shareholders’ Meeting in such a way as is
necessary to ensure that at all times the terms, conditions and provisions of
this Agreement are and will be satisfied.
4 Board of Directors
4.1 Election/Number of Directors
4.1.1 The Parties agree that the board of directors of the Company (the
“Board of Directors”) shall consist of a maximum of 20 persons. Directors
are appointed by resolution of the Shareholders’ Meeting.
4.1.2 The Shareholders have to ensure that at all times the Board of Directors
is constituted of atleast one person who is resident in India. A party
nominating a member to the Board of Directors shall be entitled to
remove such member at any time.
4.1.3 All Parties undertake to vote their Shares in favour of the persons
proposed in accordance with the designation rights set forth in this
Section 4.1.1.
4.3.2 The Board of Directors may delegate the management of the Company
to a CEO who will be assisted by the management.
5.1.2 The Parties agree that all Shareholders shall have the right to subscribe
for a proportionate share of any future equity financing round by the
Company other than shares issued
(i) in an initial public offering;
(ii) pursuant to an acquisition by the Company of other corporations;
(iii) in favour of a strategic partner (whereby a party being qualifies as a
strategic partner if so resolved by a majority of Shareholders
representing at least 66.6% of the Company's Shares);
(iv) pursuant to an employee stock option plan approved by the
Company's Board of Directors;
5.1.3 If the Parties participate in such future equity financing round, any new
shares subscribed by them shall be subject to this Agreement in the
same way as the shares already held by them. If third parties wish to
participate as additional investors in such further equity financing rounds
(hereinafter the "Additional Investors"), the Investors may require, as a
condition precedent to such participation and at their discretion, that
such Additional Investor(s) join this Agreement or enter into a
shareholders’ agreement similar to this Agreement.
5.1.4 Any new Shares not subscribed for by a Shareholder shall be reallocated
pro rata amongst other eligible Shareholders.
6.1.3 The Shareholders will have the right to freely transfer their Shares
among any of their affiliates or investment vehicles advised by their
management companies and to their limited partners in the case of
Shareholder being limited partnerships, without triggering any of the
transfer provisions set forth herein, provided that such transferee agrees
to be bound by the same terms and conditions relating to rights of
transfer applicable to the Shareholders.
6.1.4 No Shareholder shall transfer any shares in the Company to any person
unless, as a condition precedent to such transfer, the transferee of such
shares (if not already a party hereto) shall have executed and delivered
to the Parties a deed of adherence providing that such transferee will be
deemed to be a party to this Agreement and any shares held by such
transferee will be subject to the provisions of this Agreement.
6.2.2 In the event any of the Founder leaves the Company or is dismissed
without cause or fault, he/she shall be required to transfer the
remaining share as per Schedule ‘B’ to the continuing Founder(s) or their
Nominees in the ratio of continuing Founder(s) shareholding at Face
value.
6.2.3 If the Continuing Founder(s) are unable to buy the shares of the outgoing
Founder, the Company may buyback the shares as permitted by Law at
Face value or fair market value.
6.3.2 If the intended disposal is not a bona fide sale, then the applicable price
shall be determined at the expense of the Selling Party(ies) by an
independent international accounting or investment bank as the Parties
may agree upon further to the Selling Party(ies) suggestion (or, failure to
agree, by the one designated by Board of Directors), who shall act as
expert arbitrator, whose determination shall be binding absent manifest
error, and who shall apply valuation principles which are generally
applied for the valuation of companies of the same kind and active in the
same business.
6.3.3 The right of first refusal granted hereunder shall be exercisable only in
whole, with respect to the full number of Offered Shares, and not in
part.
6.3.4 In the event that more than one of the Non-Selling Parties have elected
to exercise their right of first refusal, then each of them shall have the
right to purchase such number of Offered Shares as shall correspond to
the proportion of the shares owned by it at the time of exercise of the
offer in relation to the total number of Shares owned by all the Non-
Selling Parties exercising their right of first refusal, unless otherwise
agreed from case to case.
6.3.5 If a Non-Selling Party exercises the right of first refusal, then the shares
so acquired shall be subject to the same right of first refusal as applies in
respect of the shares initially held by such Party in the event of a future
disposal.
6.3.6 If the right of first refusal is not exercised, or not exercised in whole,
within the Exercise Period, then the Selling Party(ies) may sell the
Offered Shares to the Prospective Purchaser at the price and on the
terms and conditions as set forth in the Offer Notice, provided that such
sale is completed within 45 days after the expiration of the Exercise
Period. In such event, the Non-Selling Party may further require that the
Prospective Purchaser upon the purchase of the Offered Shares assumes
in writing all of the rights and obligations of the Selling Party(ies) under
this Agreement. In case that such sale to the Prospective Purchaser is not
completed within said 45 days the right of first refusal stipulated herein
shall apply again.
6.4.3 If this right is exercised, and provided the other Non-Selling Parties shall
not exercise their rights of first refusal pursuant to Section 6.3.1 above in
respect of the Offered Shares and the shares of the Participating
Shareholder(s) for which the tag-along right has been exercised, then the
Selling Party(ies) shall be obligated to sell the Shares of the Participating
Shareholder(s) to the Third Party Purchaser at the same price and on the
same terms and conditions as have been agreed in good faith for the
Offered Shares with the Third Party Purchaser. In the event the Third
Party Purchaser refuses to acquire the Shares of the Participating
Shareholders together with the Shares of the Selling Party(ies) in
accordance with this provision, the Selling Party(ies) shall not sell any of
their own Shares to such Third Party Purchaser.
6.5.2 If this drag-along right is exercised, then all the Non-Selling Party(ies)
shall be obligated to sell all their shares to the Third Party Purchaser at
the same price and on the same terms and conditions as have been
agreed in good faith for the Offered Shares with the Third Party
Purchaser.
7.1.2 During their employment with the Company and thereafter, the
Founders, the members of the management and the employees shall not
take or file for any patents or trademarks related to the Company’s
business in their own names. Such patents and trademarks shall be the
sole property of the Company.
8.1.2 Without limiting the generality of the foregoing, the Parties agree to
accept, and be bound by any lock-up provision which may apply in case
of an IPO under applicable stock exchange rules or which may be
reasonably agreed upon with the underwriters in order to enhance the
success of the IPO.
8.1.3 In case an IPO is launched in accordance with this Section 8.1, then the
rights of first refusal and the tag-along rights provided for in Sections 6.3
and 6.4 shall not apply with respect to the transactions related to such
IPO.
8.2.2 In the event of a Trade Sale pursuant to this Section 8.2, the right of first
refusal pursuant to Section 6.3 shall apply.
9 Deposit of Shares
9.1 In order to secure the rights and duties contained in this Agreement, the
Parties hereby undertake to deposit their shares with the Company (or an
agent appointed by the Company), under the sole control of the Board of
Directors immediately after signing of this Agreement.
10 Term of Agreement
10.1 Duration
10.1.1Unless sooner terminated in accordance with its terms, this Agreement
shall terminate upon the date of consummation of a Significant Sale
(51% or more of the total Founders equity). If a Party hereto ceases to
own any Shares or other rights to acquire Shares, such Party will no
longer be deemed to be a Party for purposes of this Agreement, and
there shall be no liability on the part of any such Party, except for
liabilities arising from a breach of this Agreement prior to such
termination.
10.1.2This Agreement shall terminate automatically notwithstanding the
preceding paragraph in the event of an IPO of the Company or in the
event of a Trade Sale of all or substantially all of the Shares owned by
the Shareholders, such termination to become effective upon
completion of the IPO or Trade Sale.
10.1.3If one of the Parties has disposed of all its shares in accordance with the
provisions of this Agreement, then, upon completion of such disposal,
this Agreement shall terminate with respect to such Party, and such
Party shall no longer be a party to this agreement, but this Agreement
shall be continued among the remaining Parties.
11 Miscellaneous
11.1 Confidentiality
11.1.1The existence and the content of this Agreement shall be kept strictly
confidential by all Parties, except that (i) they may be disclosed to
professional advisors of each Party who are subject to professional
duties of confidentiality, (ii) the Parties may make any legally required
disclosure to investors, fiscal or other authorities, and (iii) the Parties or
any entity directly or indirectly holding an equity interest in any of the
Parties shall be obliged to disclose information under applicable
securities laws or requirements of stock exchanges on which its stock is
listed.
11.2 No Waiver
11.2.1The failure of any Party to enforce any of the provisions of this
Agreement or any rights with respect thereto shall in no way be
considered as a waiver of such provisions or rights in any way to affect
the validity of this Agreement. The waiver of any breach of this
Agreement by any Party hereto shall not be construed as a waiver of any
other prior or subsequent breach.
11.3 Severability
11.3.1Should any provision of this Agreement be or become invalid or
unenforceable, the validity of the remaining provisions of this
Agreement shall not be affected or impaired thereby. Such
unenforceable, incomplete or invalid provision shall be replaced by such
valid, enforceable or complete provision which bona fide parties would
consider to match as closely as possible the invalid, incomplete or
unenforceable provision, attaining the same or a similar economic effect.
The same shall apply to any supplementary interpretation of any of the
terms of this Agreement.
11.4 Modifications
11.4.1This Agreement may be amended only in writing through a document
signed by all Parties hereto.
11.5 No Assignment
11.5.1Neither Party shall assign this Agreement or any rights or obligations
hereunder to any third party without the written consent of the other
Parties hereto.
11.6 Interpretation
11.6.1Should any conflict arise between this Agreement and the Articles of
Association of the Company or its subsidiaries, involving the Parties, on
the interpretation or performance on any of the provisions thereof, the
Parties hereby acknowledge that the provisions of this Agreement shall
prevail.
11.7 Counterparts
11.7.1This Agreement may be executed in one or several counterparts, all of
which together shall constitute one and the same agreement.
11.8 Entire Agreement
11.8.1This Agreement constitutes the complete and exclusive Agreement
between the parties respecting the subject matter. This Agreement
supersedes all previous agreements between the Parties, whether oral
or written, regarding subject matter hereof.
12.3 Jurisdiction
12.3.1It is mutually agreed between all the Parties hereto that any dispute or
claim arising under this Agreement shall be subject to the jurisdiction of
the Courts at <<Company’s main location>>.
2.
Witness:
Sl.No Name, Place & Date Signature
.
1.
2.
Schedule ‘A’
1. Current Structure
Authorised Capital Rs.<<Authorized capital amount>> (Rupees <<Authorized capital
in words>> only) divided into <<No. of equity shares>> (<<Equity
shares in words>> only) equity shares of Rs.<<Face value of Equity
shares>> each.
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