Date
Between
(insert name)
and
(insert Name)
__________________________________
SHAREHOLDERS AGREEMENT
______________________________________
THIS SHAREHOLDERS’ AGREEMENT is made , …. Between:-
(1) [insert company name] ”RPPL”) a company incorporated in Singapore and having its registered office at……..; and
(2) …….. (‘SCB”) (Company No …..), a company incorporated in Malaysia and having its registered office at …………..
WHEREAS:-
(A) ……. (the ‘Company’ is a private limited liability company incorporated in Malaysia. The Company has at the date of this Agreement an authorised share capital of RM… comprising of 10,000,000 ordinary shares of RK1.00 each, of which 10,000,000 ordinary shares have been issued and are fully paid up.
(B) Pursuant to a PM Subscription Agreement of …, and made between (1) RPPL (2) SCB and (3) the Company, (the “PM Subscription Agreement”), the Parties agreed that RPPL will subscribe for such number of ordinary shares of RM1.00 each and preference shares of RM1.00 each in the capital of the Company, constituting 48% of the total issued ordinary share and preference share capital of the Company, on the basis that on completion (“Completion”), SCB will be legally and beneficially entitled to 52% of the total issued ordinary and preference share capital of the Company, and that after Completion, SCB and RPPL shall operate the Company as a joint venture company to own and manage the Property (as defined below)
(C) in accordance with the terms of the PM Subscription Agreement, SCB and RPPL agreed that on Completion, they will enter into this Agreement to effect their intentions and to regulate their relationship inter se as shareholders in the Company and the conduct of the business and affairs of
the Company.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATIONS
Definitions: In this Agreement and the Schedules, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings respectively ascribed to them:
“Act” means the Malaysian Companies Act, 1965;
“Approved Company” means a company related to RPPL or GIC Real Estate Pte Ltd (“GICRE”) or if not a related company to RPPL or GICRE, then a company which is not in the reasonable opinion of the Company, a company that is not in the interest of the Company to have as its shareholder. For purposes of this Agreement, “related company” shall have the meaning ascribed thereto in the Companies Act, Cap. 50 of Singapore;
‘Approved Property Valuer’, means any independent international firm of property valuers carrying on business in Malaysia;
‘Articles‘ means the Articles of Association for the time being of the Company;
‘Auditors’ means the auditors for the time being of the Company;
‘Board‘ means the Board of Directors for the time being of the Company;
‘Business‘ means the business of the Company as defined in Clause 2(A);
“RPPL Directors” means the directors appointed by RPPL from time to time pursuant to Clause 3(B), and “RPPL Director” means any of them;
‘Directors’ means the Directors for the time being of the Company;
‘External Financiers, means the banks/financial institutions referred to in Clause 6(A)(i);
“External Financing” means the external financing to the Company referred to in Clause 6(A)(i);
“Group Companies” means the Company and its subsidiary companies, and a ‘Group Company’ means any of them;
‘Memorandum‘ means the Memorandum of Association for the time being of the Company;
‘Parties‘ means RPPL and SCB;
“Property” means the property described in Schedule 1;
‘Real Estate’ means the Property and any other real estate, real property and leasehold interests of at least seven years (if any) at any time and from time to time owned or held by the Company;
‘Reference Banks, means ………..and such other banks as the Parties may agree;
“Related Party” I means any of the following:-
(i) a Shareholder; or
(ii) a related corporation or director of such Shareholder; or
(ii) a Director; or
(iii) a party in which a Shareholder or any of its related corporation, a Director or a director of such Shareholder, is directly or indirectly interested;
‘Relevant Authorities‘ means the Foreign Investment Committee of Malaysia and all other government authorities, whose consent is required for purpose of effecting the transactions contemplated;
‘Ringgit’ and the sign “RM” mean the lawful currency of Malaysia;
“SCB Directors” means the directors appointed by SCB from time to time pursuant to Clause 3 (B), and “SCB Director” means any of them;
“Shareholders”, means SCB, RPPL and any other person holding shares in the capital of the Company who shall have executed a deed of ratification and accession pursuant to Clause 5(C);
‘Shareholders, Loans, means loans advanced by the Shareholders to the Company from time to ties; and
“Shareholder Percentage” in relation to any Shareholder, means the percentage of all ordinary shares beneficially owned by that Shareholder in the issued ordinary share capital of the Company for the time being.
(B) Interpretation:
(i) References to Clauses, the Schedules and the Appendices are to the clauses of, and the schedules and the appendices to, this Agreement.
(ii) The headings are for convenience only and shall not affect the interpretation of this Agreement.
(iii) Unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa; references to natural persons shall include bodies corporate and vice versa; and words denoting any gender shall include all genders.
(iv) The expression financial year, shall mean a period in respect of which an audited profit and loss account of the Company has or is to be prepared for the purpose of laying before the Company at its annual general meeting, whether that period is a year or not.
(v) Terms defined and references construed in the PM Subscription Agreement but not defined or construed in this Agreement shall have the same meanings and construction in this Agreement.
2. BUSINESS OF THE COMPANY
(A) Business: The business of the Company (‘Business‘) shall be;-
(i) to hold and manage the Property for rental investment income;
(ii) to lease and operate (as the case may be) , the Property subject to prevailing market conditions; and
(iii) to perform and fulfil all acts, matters and things as may be consistent with and necessary for the attainment of (i) and (ii).
(B) General Obligations of Shareholders: In consideration of the mutual obligations of the Parties hereto herein contained, and except as the Shareholders may otherwise agree in writing or save as otherwise provided or contemplated in this Agreement, each of the Shareholders shall exercise its powers in relation to the Company so as to ensure that:-
(i) the Company carries on its Business and conducts its affairs in a proper and efficient manner and for its own benefit;
(ii) the Company and the Directors will comply strictly and expeditiously with the provisions of this Agreement and the Articles;
Iii) the Business of the Company shall be carried on pursuant to the policies set out herein or laid down from time to time by the Board, which shall hold Board meetings in accordance with Clause 3 and the Articles;
(iv) the Company shall cause to be kept full and proper accounting records relating to the business, undertakings and affairs of the Company, which records shall be made available at all reasonable times for inspection by the RPPL Directors or the SCB Directors by prior appointment during office hours and for copies to be made available to such Directors on request;
(v) the Company shall retain its policy of having a financial year ending on the 31st of December of each year and shall prepare annual accounts, in each case in accordance with generally accepted accounting principles and in compliance with all applicable Malaysian legislation in respect of each accounting reference period, and shall procure that such accounts are audited as soon as practicable and shall supply copies of the same, both in draft and final form, to each of the Shareholders immediately upon their issue;
(vi) the Company shall do all that the Auditors may reasonably require by way of keeping
records and accounts and provide the Auditors with all such information and explanation as they may reasonably require and otherwise assist the Auditors in all reasonable ways;
(vii) the Company shall, within thirty (30) days after the end of each monthly accounting
period, provide to each Director and each Shareholder, an unaudited financial report of the Company for that monthly accounting period prepared in accordance with generally accepted accounting principles and in compliance with all applicable Malaysian legislation (excluding footnotes and subject to normal year-end and audit adjustments); and
(viii) the Company continues to qualify as resident in Malaysia for the purposes of
taxation and is not resident elsewhere.
(C) Key Issues: Without prejudice to the generality of the provisions of Clause 3(H)(iv) and Clause 4(B), the Company shall not take or permit any action in respect of or carry out or permit the carrying out of any of the matters listed in Schedule 2, unless with the written consent of the Shareholders (or the Directors representing such Shareholders) holding at least seventy five per cent (75%) of the issued share capital of the Company.
3. BOARD OF DIRECTORS
(A) Number: ‘Unless otherwise unanimously agreed upon by the Shareholders in writing, the Board shall consist of not more than five (5) Directors.
(B) RPPL Directors and SCB Directors: (i) RPPL shall be entitled at its option at any time to appoint two (2) directors to the Board (who shall be designated as “RPPL Directors”) but shall not be obligated to so appoint and SCB shall be entitled to appoint three (3) directors (who shall be designated “SCE Directors”); (ii) SCB undertakes to procure the appointment of the person nominated by RPPL as a director of the Board promptly and shall where necessary procure the resignation of an existing director in order to appoint the RPPL Director and comply with Clause 3(A) above.
(C) Right of Appointment: The right of appointment conferred on a Shareholder under sub-Clause (B) above shall include the right of that Shareholder to remove at any time from office such person appointed by that Shareholder as a Director and the right of that Shareholder at any time and from time to time to determine the period during which such person shall hold the office of Director.
(D) Notice in writing: Each appointment or removal of a Director pursuant to this Clause shall be
in writing and signed by or on behalf of the Shareholder appointing or removing such Director and shall be delivered to the registered office for the time being of the Company, such appointment or removal to take effect from the date specified in that Shareholder’s notice.
(E) Further Director: Whenever for any reason a person appointed by a Shareholder ceases to be a
Director, that Shareholder shall be entitled to appoint forthwith another Director.
(F) Alternate Director: A Director shall be entitled at any time and from time to time to appoint any
person to act as his alternate and to terminate the appointment of such person and in that connection the provisions of the Articles shall be complied with. Such alternate director shall be entitled while holding office as such to receive notices of meetings of the Board and to attend and vote as a Director at any such meetings at which the Director appointing him is not present and generally to exercise all the powers, rights, duties and authorities and to perform all functions of the Director appointing him. Further, such alternate director shall be entitled to exercise the vote of the Director appointing him at any meetings of the Board and if such alternate director represents more than one Director isuch alternate director shall be entitled to one vote for every Director he represents.
(G) Chairman: (i) The Chairman of the Board shall be appointed by SCB with RPPLIs approval, which approval shall not be unreasonably withheld. The Chairman shall not have a second or casting vote at any meeting of the Board of Directors or at any general meeting of the Company.
(ii) The aforesaid rights of appointment of the Chairman, in relation to SCE shall cease when it ceases to be the registered and beneficial owner of at least forty five (45%) per cent of the total and issued share capital of the Company.
(H) Meetings of Directors:
(i) Meetings of the Board shall be held at such times as the Board shall determine. Unless a shorter period of notice in respect of any particular meeting is unanimously agreed to by all Directors, not less than fourteen (14) days’ notice specifying the date, place and time, of the meeting and the business to be transacted thereat shall be given to all Directors, irrespective of whether they are resident in or outside Malaysia.
(ii) Notwithstanding anything in the Articles to the contrary, the quorum at a meeting of the Directors necessary for the transaction of any business of the Company shall be two Directors present throughout the meeting, including at least one RPPL Director, if any, and at least one SCB Director.
(iii) If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall be adjourned to the same time and day one (1) week later and at the same place and not less than seven (7) days, notice thereof shall be given to the Directors in relation to such adjourned meeting. Any two (2) Directors so present at the adjourned meeting shall form a quorum provided that no issues or matters shall be raised or discussed at the adjourned meeting if such issue or matter had not been specified in the agenda in respect of the meeting when it was first called.
(iv) All resolutions of the Directors at a meeting or adjourned meeting of the Directors shall require the affirmative votes of the Directors representing Shareholders holding at least fifty one per cant (51%) of the issued share capital of the Company.
(I) Circular Resolutions:
(i) A resolution in writing signed by the majority of the Directors and including a RPPL Director, shall be as valid and effective as a resolution passed at a meeting of Directors duly convened and held as long as notice of such proposed resolution is given to all Directors.
(ii) A resolution in writing may consist of several documents in like form each signed by one or more of the Directors. The expressions in “writing” and “signed” include approval by telefax or telex by any such Director, which approval shall be confirmed in writing by such Director thereafter.
4. GENERAL MEETINGS
(A) Quorum
(i) No business shall be transacted at any general meeting of the Company unless a quorum of Shareholders is present throughout the meeting. Notwithstanding the provisions of the Articles, the quorum at a general meeting of the Company shall be two Shareholders present personally or by proxy, attorney or representative throughout the meeting, including at least the representative of RPPL and the representative of SCB.
(ii) if within half an hour from the time appointed for the general meeting a quorum is not present, the meeting shall be adjourned to the same time and day two (2) weeks later and a t the same place and not less than seven (7) days I notice thereof shall be given to the Shareholders in relation to such adjourned meeting. Any two (2) Shareholders holding not less than fifty one per cent (51%) of the issued share capital of the Company, present personally or by proxy, attorney or representative at the adjourned meeting shall form a quorum provided that no issues or matters shall be raised or discussed at the adjourned meeting if such issue or matter had not been specified in the agenda in respect of the meeting when it was first called.
(B) Voting: Subject to any additional requirements imposed by the Act, all resolutions of the Shareholders shall require the affirmative votes of the shareholders holding at least fifty one per cent (51%) of the issued share capital of the Company.
5. TRANSFER OF SHARES
(A) Restriction on Transfer:
(i) Subject to sub-Clause (B) below and Clauses 7 and 8, no Shareholder shall transfer shares held by it in the capital of the Company or otherwise sell, dispose of or deal with all or any part of its interest in such shares unless and until the rights of pre-emption conferred by this sub-Clause (A) have been exhausted.
(ii) No Shareholder shall, without the prior written consent of the other Shareholders, create or have outstanding any pledge, lien, charge or other encumbrance or security interest on or over any shares in the capital of the Company or any part of its interest in such shares.
(iii) Every Shareholder who desires to transfer any share or shares (‘Transferorl) shall give to the Company and the Shareholders other than the Transferor other Shareholders,) a notice in writing of such desire (‘Transfer Notice’), which notice shall specify:-
(a) the identity of the buyer to whom the Transferor proposes to transfer such shares (“Buyer”), which requirement is only waived if the Transferor has not found a buyer at the time of the Transfer Notice;
(b) the number of shares proposed to be transferred (“Sale Shares”);
(c) the price fixed by the Transferor for each such Sale Share (‘Transferor’s Price,); and
(d) the other terms and conditions of such sale (if any) (“Prescribed Terms”).
(iv) Subject as hereinafter mentioned, a Transfer Notice shall constitute an offer by the Transferor for the sale of the Sale Shares to the other Shareholders at the Transferor’s Price and on the Prescribed Terms (if any). Subject to paragraph (vii) below, a Transfer Notice shall not be revocable except with the sanction of the other Shareholders.
(v) The Company shall forthwith by notice in writing inform each of the other Shareholders of the number and price of the Sale Shares and invite each of the Other Shareholders to apply in writing to the Company within 21 days of the date of despatch of the notice (which date shall be specified therein) for such maximum number of the Sale Shares (being all or any part thereof) as it shall specify in such application.
(vi) if the other Shareholders shall within the said period of 21 days apply for all or (except where the Transfer Notice provides otherwise) any of the Sale Shares, the Board shall allocate the Sale Shares (or so many of them as shall be applied for as aforesaid) to or amongst the applicants and in case of competition pro-rata (as nearly as possible) according to the number of shares in the Company of which they are registered or unconditionally entitled to be registered as holders provided that no applicant shall be obliged to take more than the maximum number of Sale Shares specified by it as aforesaid; and the Company shall forthwith give notice of such allocations (an ‘Allocation Notice’) to the Transferor and to the Shareholders to whom the Sale Shares have been allocated and shall specify in such Allocation Notice the place and time (subject to paragraph (viii) below, being not earlier than twenty-one (21) and not later than twenty-eight (28) days after the date of the Allocation Notice) at which the sale and purchase of the Sale Shares so allocated shall be completed.
(vii) If it is a condition specified in the Transfer Notice that all and not some of the Sale Shares must be purchased and if the Other Shareholders do not, on a collective basis, apply to purchase all the Sale Shares, the Transferor shall, subject to paragraph (x) below, he entitled to sell all the Sale Shares, in accordance with, and within the three month period specified in, paragraph (x) below.
(viii) In the event any one or more of the other Shareholders named in the Allocation Notice as the purchaser(a) of the Sale Shares (“Conditional Purchaser”) requires the approvals of the Relevant Authorities for the purchase of the Sale Shares allocated to such Conditional Purchaser in the Allocation notice, the Allocation Notice in respect of such Conditional Purchaser shall be deemed to be subject to the following terms:-
(a) the Conditional Purchaser shall expeditiously apply to the Relevant Authorities for approval for the purchase of the Sale Shares or such part thereof as may be allocated to it;
(b) that if the approval of the Relevant Authorities is not obtained, or is obtained on terms unacceptable to the Conditional Purchaser, the Conditional Purchaser shall be entitled by notice in writing to the Transferor and the Company (the ‘Nomination Notice,) which consent shall not be reasonably withheld to nominate any of its Related Party who shall have obtained the Relevant Authorities, approval or who does not require the Relevant Authorities’ approval to purchase the Sale Shares allocated to the Conditional Purchaser, in which event, the Conditional Purchaser shall be responsible for ensuring that such nominated third party completes the purchase of the Sale Shares in accordance with the terms herein;
(c ) completion of the sale of the Sale Shares to the Conditional Purchaser or its nominee shall take place one (1) month after the earlier of (1) the date the Conditional Purchaser obtains the approval of the Relevant Authorities on terms acceptable to it and (2) the date of the Nomination Notice, provided that in any event, completion shall not take place later than four months after the date of the Allocation Notice; and
(d) in the event the Conditional Purchaser is unable to obtain the Relevant Authorities, approval on terms acceptable to it and the Conditional Purchaser fails to issue the Nomination Notice within three (3) months after the date of the Allocation Notice, the provisions of paragraph (x) below shall apply mutatis mutandis to the intent that following upon the expiry of the aforesaid three (3) month period, the Transferor shall be at liberty to transfer the Sale Shares in accordance with the provisions of paragraph (x) below;
(ix) Subject to paragraphs (vii) and (viii) above, the Transferor shall be bound to transfer the Sale Shares comprised in an Allocation Notice to the purchaser(s) named therein at the time and place therein specified by the delivery of duly executed transfer forms together with the share certificates in respect of such Sale Shares and, if it shall fail to do so, a person appointed by the purchaser(s) named in the Allocation Notice shall be deemed to have been appointed attorney of the Transferor with full power to execute, complete and deliver, in the name and on behalf of the Transferor, transfers of the Sale Shares to the purchaser thereof against payment of the price to the Company. On payment of the price to the Company the purchaser shall be deemed to have obtained a good quittance for such payment and on execution and delivery of the transfer form the purchaser shall be entitled to insist upon its name being entered in the Register of Members as the holder by transfer of the Sale Shares. The Company shall forthwith pay the price into a separate bank account in the Company’s name and shall hold such price in trust for the Transferor.
(x) During the three months following the expiry Of the said period of twenty-one (21) days referred to in paragraph M above, the Transferor shall, subject to sub-Clause (C) below, be at liberty to transfer any Sale Share not purchased by the Other Shareholders to the Buyer and at any price (not being less than the Transferor’s Price) and on terms not more favourable than the Prescribed Terms (if any) except that the Transferor may provide representations, warranties, covenants and indemnities customary for such transfer to the Buyer. If, however, the Transferor did not identify a Buyer at the time of giving the Transfer Notice, the Transferor may not transfer any Sale Share to any buyer thereof without the prior written consent of the Other Shareholders in respect of the identity of such buyer thereof, such consent or refusal of consent shall be notified in writing to the Transferor within twenty-one (21) days of the Transferor’s written request, and if no written response is issued by any of the Other Shareholders within the said twenty-one (21) days, such Other Shareholders shall be deemed to have given their irrevocable consent.
(xi) For the avoidance of doubt, the provisions of paragraph (x) above shall not in any way affect the Transferor’s right to serve a fresh Transfer Notice at a different price and on different terms (if any) at any time subsequent to the expiry of the said period of three (3) months.
(B) Permitted Transfers –
(i) For the purpose of this sub-Clause (B) , the term ‘Permitted Transferee, in relation to RPPL shall mean a wholly owned subsidiary of …, and in relation to SCB shall mean a wholly owned subsidiary of SCB.
(ii) Notwithstanding anything in sub-Clause (A) above but subject to sub-Clause M W and paragraph (iii) below, a Shareholder being a corporation (‘Transferor ) shall be entitled to transfer all (and not some only) of the shares held by it in the capital of the Company to a Permitted Transferee.
(iii) it shall be a condition precedent to the transfer by a Transferor Corporation to a Permitted Transferee that:-
(a) if the approval of the Relevant Authorities is required for any such transfer to a Permitted Transferee, such approval shall be obtained by the Transferor Corporation prior to such transfer;
(b) the Transferor Corporation executes, in such form as may be reasonably required by and agreed between the other Shareholders, a guarantee in favour of the other Shareholders, for the due performance by the Permitted Transferee of the obligations under this Agreement which are to be assumed by the Permitted Transferee pursuant to the deed of ratification and accession; and
(c) the Permitted Transferee takes over and assumes all shareholder’s loans and other obligations (including without limitation, any guarantee, security or arrangement of subordination or undertaking provided to the External Financiers) of the Transferor Corporation.
(iv) if however at any time after a transfer of shares is effected by the Transferor Corporation to a Permitted Transferee pursuant to paragraph (ii) above, the Permitted Transferee ceases to be a wholly owned subsidiary of the holding company of the Transferor Corporation, it shall be the duty of the Permitted Transferee to notify the Board in writing that such an event has occurred and both the Transferor Corporation and the Permitted Transferee jointly and severally undertake to procure and ensure that all (and not some only) of the shares, shareholders, loans and other obligations (including without limitation, any guarantee, security or arrangement of subordination or undertaking provided to the External Financiers) of the Permitted Transferee are forthwith transferred to the Transferor Corporation within seven (7) days of such cessation.
(C) Supplementary Provision–
(i) It shall be a condition precedent to the right of any Shareholder (‘Transferring Shareholder’) to transfer shares in the capital of the Company to any person (including a Shareholder) (‘Transferee‘) that the Transferee (if not already bound by the provisions of this Agreement) executes, in such form as may be reasonably required by and agreed between the other Shareholders, a deed of ratification and accession under which the Transferee shall agree to be bound by and shall be entitled to the benefit of this Agreement as if an original party hereto in place of or in addition to the Transferring shareholder (as the case may be).
(ii) The Shareholders shall procure that any transfer of shares made in accordance with the provisions of this Agreement shall (subject to all formalities thereof having been fulfilled) be duly registered by the Company.
(iii) If pursuant to the terms of this Agreement, a Shareholder (‘Seller’) becomes bound to transfer all of its shares in the Company to the other Shareholder(s) (‘Buyer’), the Buyer shall upon or immediately prior to completion of such transfer take over and assume all obligations (including without limitation, any guarantee, security or arrangement of subordination or undertaking provided to the External Financiers) and procure the immediate release of all such undertakings, guarantees, indemnities and securities, if any, given by the Seller for the benefit of the Company to the External Financiers or any other parties, and pending such release the buyer shall indemnify and keep the Seller fully and effectively indemnified from and against all claims arising thereunder.
(iv) if in compliance with the terms of this Agreement, all or any of the shares in the Company held by any Shareholder is at any time transferred to a third party or parties, then it shall be the responsibility of the Shareholder so transferring such shares (‘Transferor Shareholder’) to procure that the purchaser or transferee thereof shall furnish all undertakings, guarantees, indemnities and securities, if any, an may be required by and acceptable to the External Financiers or any relevant government authorities relating to the Property and/or in exchange for the release of any undertakings, guarantees, indemnities or securities given by the Transferor Shareholder. Until the necessary undertakings, guarantees, indemnities or securities are given by the transferee, the Transferor Shareholder shall remain liable under all undertakings, guarantees, indemnities or securities given by it for the benefit of the Company.
(D) Moratorium: Notwithstanding any provisions herein, SCB hereby undertakes and covenants to
RPPL that-.-
(i) it shall not dispose, charge, encumber or otherwise deal with all or any part of its shareholding in the Company for a period of five years from Completion Date (“ Moratorium Period”) and
(ii) in the event that it intends to sell transfer or otherwise dispose of all or any of its shares in the Company after the Moratorium Period, subject to compliance with sub-Clauses 5(A) and (C), RPPL shall be entitled to (but not obliged to) co-sell a similar proportion of the shares held by it provided that in the event SCB intends to sell, transfer or otherwise dispose of all or any of its shares in the Company (whether by, a single transaction or a series of transactions) where the ef fact of such transaction or transactions (as the case may be) is that it will thereafter collectively hold less than fifty per cent (50%) of the aggregate number of shares in the Company, RPPL shall, notwithstanding any provisions-herein and without prejudice to its other rights under this Agreement, be entitled to (but not obligated to) to co-sell all the shares then held by it to the person proposing to buy shares from SCE (the ‘Third Party Buyer” ) and SCB shall procure that the Third Party Buyer shall purchase the shares from RPPL on terms and conditions no lose favourable than the terms and conditions applicable to SCB, and provided that the price is not less than the Specified Price an defined in Clause 8 (E) of the PM Subscription Agreement.
6. FINANCIAL REQUIREMENTSF
(A) Priority of funding: The Company shall use its best endeavours to obtain funds to finance the Business in the following order of priority:-
(a) external financing (‘External Financing’) from banks/financial institutions (‘External Financiers,) secured by mortgage of the Property;
(b) shareholders, loans (subject to applicable exchange control requirements or such approval
of the Relevant Authorities as may be necessary); and
(c) equity injection.
(B) Funding obligations:
(i) Subject to sub-Clause (A) each Shareholder hereby agrees that any funding which is
agreed to by the Parties, shall be in the Shareholding Percentage, by way of shareholders, loans and/or, if both Parties do not advance the shareholders, loans, by equity (if not financed by External Financiers) to enable the Company to meet its financial obligations in relation to the Property and all related costs and expenses of the acquisition, and for the carrying on of the Business.
(ii) in the event that approval of the Relevant Authorities is required for any increase in
authorised and/or issued share capital, and/or for any of the Parties to subscribe for such increase in the issued share capital, the Parties shall procure that the Company, or where applicable the relevant Party or Parties, shall make the necessary application to the authorities to obtain such approval or consent. In the event such approval or consent is not given, the Parties acknowledge that they will seek alternative methods of financing the working capital reqU3.rement of the Company, to the intent that the Shareholding Percentage indicated in Recital (B) (or if such Shareholding Percentage has changed pursuant to a transfer of shares in accordance with the pre-emption procedures contained in Clause 5, then the prevailing Shareholding Percentage) shall be maintained.
(C) Shareholders’ Loans: Unless otherwise agreed by the Shareholders, Shareholders’ Loans to be
provided by the Shareholders shall be subject to the terms and conditions set out in Schedule 3.
(D) Default: If any Shareholder (‘Dissenting Shareholder’) fails or refuses to subscribe for its
Shareholding Percentage of new shares in the Company at the applicable issue price for the said shares pursuant to subClause (A) or (B) above (‘Unaccepted Shares’) or pay to the Company its Shareholding Percentage of the Shareholders’ Loans pursuant to sub-Clause (A) or W above (‘Unpaid Portion’) (as the case may be) , the other Shareholders who have subscribed for their respective Shareholding Percentages of such new shares or who have extended their respective Shareholding Percentages of the Shareholders, Loans (as the case may be) (‘Other Shareholders’) may (without prejudice to their rights under Clause (7) but are not obliged to:-
(i) (subject to the approval of the Relevant Authorities, if required) subscribe for all or some of the Unaccepted Shares at the applicable issue price of the Unaccepted Shares by giving notice in writing to the Company and all Shareholders. in case competition arises among the Other Shareholders, the Unaccepted Shares shall be pro-rated among such Other Shareholders according to the number of shares in the Company of which they are registered or unconditionally entitled to be registered as holders. Upon such notice being given, the Other Shareholders and the Dissenting Shareholder shall forthwith take all steps necessary to ensure (by the exercise of voting rights or otherwise so to do) that the Company allots and issues to the Other Shareholders such number of the Unaccepted Shares so subscribed for by the Other Shareholders; or
(ii) make advances (‘Advances‘) to the Company of an amount equivalent to all or part of the Unpaid Portion (as the case may be) by giving notice in writing of such election to the Company and all Shareholders. In case competition arises among the Other Shareholders, the Advances shall be pro-rated among such Other Shareholders according to the number of shares in the Company of which they are registered or unconditionally entitled to be registered as holders. Notwithstanding paragraph 4 of Schedule 3, the Advances shall carry interest at the rate of two point five per cent (2. 5%) per annum above the average of the base lending rates of the Reference Banks, computed monthly an the Advances until fully repaid. Notwithstanding paragraph 5 of Schedule 3, the repayment of the Advances (and all interest accrued thereon) by the Company to the Other Shareholders shall have priority over the repayment of any Shareholders, Loans (including interest accrued thereon, if any) granted by the Dissenting Shareholder to the Company.
Without prejudice to the rights of the Other Shareholders under Clause 7, the Dissenting Shareholder shall pay to the Other Shareholders making such Advances, interest on the Advances, pro-rated (if applicable), at the rate of two point five per cent (2.5%) per annum above the average of the base lending rates of the Reference Banks, computed monthly on the Advances until fully repaid or fully capitalised whichever in the earlier.
Any tax on interest on Shareholders’ Loans (including the Advances) shall be borne by the recipient of the interest payments.
7. DEFAULT
(A) Remedy of Breach or Default: Where a Shareholder (‘Defaulting Shareholder‘) fails to perform its obligations hereunder or fails to comply with the terms and conditions of this Agreement, or any of the events stipulated in Clause 7(F) occurs in relation to such Shareholder, any of the other Shareholders (a ‘Non-Defaulting Shareholder’) shall be at liberty to issue to the Defaulting Shareholder a notice (‘Default Notice’) specifying such breach or default and, in the case of a breach or default capable of remedy, stipulating a period of not less than thirty (30) days during which such breach or default shall be remedied or steps taken in pursuance thereof. For the purposes of this sub-Clause (A), a breach or default shall be considered capable of remedy if the Defaulting Shareholder can comply with the term or condition in question in all respects other than as to the time of performance.
(B) Default Call Option: In the event that a material breach of this Agreement or a material default by a Defaulting Shareholder has been admitted or established and, in the case of a material breach or material default capable of remedy, following the failure of the Defaulting Shareholder to comply with the terms of a notice issued by a NonDefaulting Shareholder under sub-Clause (A) above, such Non-Defaulting Shareholder shall, without prejudice to any other rights and remedies it may have, be entitled to a call option (‘Default Call Option’), being the right of such Non-Defaulting Shareholder to require the Defaulting Shareholder to sell and transfer to such Non-Defaulting Shareholder or its nominee free from all liens, charges and other encumbrances and with all rights and advantages attaching thereto, all (and not some only) of U) the shares held by the Defaulting Shareholder for the time being in the capital of the Company (‘Defaulting Shareholder’s Shares’) and (ii) the shareholder’s loans granted by the Defaulting Shareholder to the Company (‘Defaulting Shareholder’s Loans’). if more than one Non-Defaulting Shareholder exercises the Default Call Option, the Defaulting Shareholder’s Shares and the Defaulting Shareholder’s Loans shall be prorated among such Non-Defaulting Shareholders according to the number of shares in the Company of which they are registered or unconditionally entitled to be registered as holders.
( C) Exercise:
(i) The Default Call option may be exercised by a Non Defaulting Shareholder by serving a notice in the form of Schedule 4 (‘Default Call Option Notice’) on the Defaulting Shareholder within a period of ninety (90) days from the date of the Default Notice.
(ii) The Defaulting Shareholder shall, upon receiving a Default Call option Notice from a Non-Defaulting Shareholder, sell and transfer to such Non-Defaulting Shareholder or its nominee free from all liens, charges and other encumbrances and with all rights and advantages attaching thereto, all of the Defaulting Shareholder’s Shares and the Defaulting Shareholder’s Loans.
(E) Price.
(i) The purchase price payable to the Defaulting Shareholder Purchase Price,) shall be:-
(a) in respect of the Defaulting Shareholder’s Shares, a price which is ninety per cent (90%) of (1) the Fair Value of such shares or (2) the Net Book Value of such shares, whichever is the lower, provided that if the Fair Value or the Net Book Value of such shares is zero or a negative amount, the purchase price for all such shares shall be RMI; and
(b) in respect of the Defaulting Shareholder’s Loans, a price which is ninety per cent (90%) of the outstanding amount of the loan (‘Loan Amount’) provided that if the Fair Value or the Net Book Value of the Defaulting Shareholder’s Shares is a negative value, the purchase price for all of the Defaulting Shareholder’s Loans shall be ninety per cent (90%) of (Loan Amount less an amount equivalent to the higher of the negative value of the Fair Value and the Net Book Value of the Defaulting Shareholder’s Shares).
(ii) The Fair Value and the Net Book Value of the Defaulting Shareholder’s Shares shall be determined by the Company’s Auditors. In determining the Fair value, the Auditors shall take into account the prevailing open market value of the Real Estate determined by an Approved Property Valuer appointed by the Auditors and such other considerations as the Auditors in their professional opinion deem fit. The Net Book Value of the Defaulting Shareholder’s Shares shall be based on the net tangible
asset value of the Company calculated in accordance with generally accepted accounting principles in Malaysia, which is equal to the aggregate of all assets of the Company, current and fixed taken at the book value of such assets (save for the Real Estate which shall be based on the market value), after deducting all current, long term and deferred liabilities (including amounts standing to the credit of the provision for accumulated depreciation account), but excluding amounts standing in the capital and revenue reserves.
(iii) The Approved Property Valuer shall determine the fair market value of the Real Estate and shall deliver its certificate thereof to the Auditors and all Shareholders within twenty one (21) days of its appointment. The Auditors shall, in turn, determine the Purchase Price and deliver its certificate thereof to all Shareholders within a period of fourteen (14) days after receipt of the certificate of the Approved Property Valuer.
(iv) The Auditors and the Approved Property Valuer shall act hereunder in the determination of the Purchase Price as experts and not as arbitrators and their determination shall be final and binding on all persons concerned and in the absence of fraud, the Auditors and the Approved Property Valuer shall be under no liability to any such person by reason of their determination or certification or by anything done or omitted to be done by the Auditors and the Approved Property Valuer for the purposes thereof or in connection therewith. The costs and expenses of the Auditors and the Approved Property Valuer shall be borne by the Defaulting Shareholder.
(F) Default Option Completion.
(i) Completion of the sale and purchase of the Defaulting Shareholder’s Shares (‘Default Option Completion’) pursuant to the exercise of a Default Call Option shall take place at the registered office of the Company on the date falling seven days after the date of the certificate of the Auditors referred to in sub-Clause (D) (iii) above or such later date as the Parties may in good faith negotiate and agree.
(ii) on the Default Option Completion, the Defaulting Shareholder shall deliver to the Non-Defaulting Shareholder:-
(a) a duly executed transfer form in favour of the Non-Defaulting Shareholder or such party as it may direct, together with the share certificates in respect of the Defaulting Shareholder’s Shares and a statutory declaration relating to the disposal of the Defaulting Shareholder’s Shares duly sworn by the Defaulting Shareholder (if required by law);
(b) a duly executed assignment in favour of the Non-Defaulting Shareholder or such party as it may direct, relating to the Defaulting Shareholder’s Loans; and
(c) evidence that all regulatory approvals and consents have, if any, been obtained and/or granted by the relevant authorities.
(iii) on the Default option Completion the Purchase Price for the Defaulting Shareholder’s Shares and Defaulting Shareholder’s Loans in [Ringgit) shall be paid by way of a cashier’s order or bankers, draft drawn on a licensed bank in Malaysia and made out in favour of the Defaulting Shareholder.
(iv) in the event that the Defaulting Shareholder fails to complete the sale and purchase of the Defaulting Shareholder’s Shares and the Defaulting Shareholder’s Loans on the Default Option Completion, any director of the Non-Defaulting Shareholder shall be deemed to have been appointed attorney of the Defaulting Shareholder with full power to execute, complete and deliver, in the name and on behalf of the Defaulting Shareholder, transfers and assignments of the Defaulting Shareholder’s Shares and the Defaulting Shareholder’s Loans to the Non-Defaulting Shareholder and/or its nominees against payment of the Purchase Price to the Company. On payment of the Purchase Price to the Company, the NonDefaulting Shareholder shall be deemed to have obtained a good quittance for such payment and on execution and delivery of the transfer and assignment of the Defaulting Shareholder’s Shares and Defaulting Shareholder’s Loans, the Non-Defaulting Shareholder shall be entitled to insist upon its name and/or its nominees, names being entered in the Company’s Register of members as the holder of the Defaulting Shareholder’s Shares and in the Company’s records as the holder of the Defaulting Shareholder’s Loans. The Non-Defaulting Shareholder shall procure that the Company shall forthwith pay the Purchase Price into a separate bank account in the Company’s name and shall hold such price in trust for the Defaulting Shareholder.
(v) The Defaulting Shareholder shall procure the written resignations of all the Directors (including the alternate Directors) appointed by it, with acknowledgements signed by each of them in a form satisfactory to the Non-Defaulting Shareholder to the effect that they shall have no claim against the Company for compensation for loss of office, redundancy, unfair dismissal or otherwise howsoever incurred except for salaries (if any) and for any other entitlements which have accrued up to the effective date of resignation of such Directors and agreed to by the Board in writing.
(vi) The restrictions on transfer of shares contained in Clause 5 or the Articles shall not apply to the sale and transfer of the Defaulting Shareholder’s Shares pursuant to any exercise of a Default Call Option.
(F) Deemed Breaches: In the event that:-
(i) any Shareholder shall become bankrupt or insolvent; or,
(ii) a resolution is passed for the winding up of any Shareholder; or
(iii) a proceeding has been instituted seeking a declaration that any Shareholder is bankrupt or insolvent or seeking bankruptcy, arrangement or composition with creditors, dissolution, liquidation or the appointment of a judicial manager, trustee, receiver or liquidator or analogous procedure under any applicable law and such proceedings remain undismissed and unstayed for a period of 60 days or are being consented to by that Shareholder,
then a material breach of this Agreement or a material default shall be deemed to have been committed by the Shareholder concerned and the provisions of sub-Clauses (B) , (C), (D) and (E) above shall apply mutatis mutandis as if a breach of this Agreement or default has been admitted or established.
(8) DEADLOCK
(A) Settlement: In the event that;-
(i) a resolution tabled at any meeting of the Directors for the transaction of any business of the Company cannot be passed after three successive attempts; or
(ii) a resolution tabled at any meeting of the Shareholders for the transaction of any business
of the Company cannot be passed after three successive attempts; or
(iii) a meeting of the Directors or a general meeting of the Shareholders cannot be convened
because of the absence of the requisite quorum after three successive attempts,
the Directors shall, immediately upon the occurrence of any such event, refer the matter
which is the subject of the approval under paragraphs (i) or (ii) above, or the matter
which was to have been discussed at the meeting of Directors or the general meeting of
Shareholders under paragraph (iii) above (as the case may be) to the respective Chief
Executive officers of SCE and RPPL (each an ‘Officer’) and the Shareholders shall
negotiate in good faith with each other with a view to resolution of such matter.
(B) Resolution of Deadlock: Upon the resolution of such matter in accordance with sub-Clause (A)
above, the Directors shall be bound to give effect to the agreement reached between the officers
in respect of such matter.
(C) Non-Resolution of Deadlock: W if a resolution of any matter referred to in sub-Clause (A) above is not agreed upon within fourteen (14) days after the date of the Board’s referral to the Officers and such deadlock does not prevent the Company from conducting or carrying on the Business, the matter shall not be proceeded with, but if the deadlock issue which remains unresolved will result in the Company not being able to conduct or carry on the Business, then any Shareholder (‘Offering Party’) may offer to purchase all (and not some only) of the shares and take over all shareholder’s loans and other obligations (including without limitation, any guarantee, security or arrangement of subordination or undertaking provided to the External Financiers) of the other Shareholder that is in dispute with the Offering Party (such disputing Shareholder hereinafter called other Shareholder’) as evidenced by the respective positions taken by the Offering Party and the other Shareholder to the action or actions which is or are the subject of the resolution referred to in sub-Clause (A) above, at the price (‘Specified Price’) and an such or nature whatsoever which may be imposed on, incurred by or asserted against the Non Defaulting Party relating to or arising out of:
(a) the failure or neglect on the part of the Defaulting Party to perform its obligations including its payment obligations under or in connection with this Agreement; or
(b) a breach of any of the Defaulting Party’s representation, warranty, undertaking and/or covenant on its part under or in connection with this Agreement; or
(c) any act, omission or default on the part of the Defaulting Party or any matter
attributable to the Defaulting Party which results in the External Financiers
recalling the whole or any part of the External Financing and/or the
enforcement of any mortgage or security over the Property and/or enforcing
any guarantee provided by the Shareholders to the External Financiers;
12. WARRANTY
Each of the Parties hereby warrants to each other as follows:-
(i) it has the corporate powers to enter into, perform and comply with its obligations under this Agreement;
(ii) all actions, conditions and things required to be taken, fulfilled and done in order to enable it lawfully to enter into and perform and comply with its obligations under this Agreement have been taken, fulfilled and done; and
(iii) this Agreement, when executed, will be legal, valid, binding and enforceable against it in accordance with the terms thereof.
13. COSTS
Each Party shall bear its own legal costs in connection with the negotiation and execution of this Agreement.
14. ASSIGNMENT
(A) Save as permitted under the terms of this Agreement, no Party may assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of the other Party.
(B) The Parties agree that the benefit of any provision of this Agreement in relation to RPPLIs right to a transfer of shares, including but not
15. PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a partnership between the Parties nor constitute any Party, the agent of the other Party or Parties or otherwise entitle any Party to have authority to bind any other Party or Parties for any purpose.
16. CONFIDENTIALITY
Except as may be required by law or any regulation or requirement of any government or regulatory authority including the Kuala Lumpur Stock Exchange, each of the Parties agrees not to disclose any information with respect to the terms of this Agreement without the prior written consent of the other Party.
17. PRESS RELEASE
Wherever practicable, without prejudice to Clause 16, each Party shall seek the prior consent of the other Party before making any press release or other public statement or disclosure concerning this Agreement or any of the transactions contemplated in it except where such public statement or disclosure is required by any applicable Stock Exchange or any other regulatory authority the Party making such statement or disclosure shall endeavour to have prior consultation with the other Party on the contents of such statement or disclosure.
18 NOTICE
Any notice to be given by any Party shall be in writing and shall be deemed duly served if delivered personally or sent by facsimile transmission or by prepaid registered post to the addressee at the address or (as the case may be) the facsimile number of the Party set opposite its name below:-
RPPL:
SCB
19. GOVERNING LAW
(A) This Agreement shall be governed by, and construed in accordance with, the laws of Malaysia.
(B) In case any dispute shall arise amongst any of the Parties hereto as to the construction of this Agreement or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, including any question regarding its existence, validity or termination, such dispute or difference shall, if all the Parties to the dispute so consent in writing, be resolved by arbitration in Singapore by an arbitrator appointed in accordance with the rules of the Singapore International Arbitration Centre. Such arbitration proceedings shall be conducted in English and the award of the arbitrator shall be final and binding on the parties.
SCHEDULE I
Details of Property
The whole of the leasehold property expiring … comprising land parcels held under……, both held under … together with the shopping mall and car park thereon known as …, as shown on the plans attached.
SCHEDULE 2
Key Issues
1. Any change in the nature and/or scope of the business of a Group
Company.
2. Any amendment to the Memorandum and/or the Articles of a Group Company.
3. Increasing or reducing the authorised or issued share capital of a Group Company (other than permitted in an Annual Budget approved in accordance with paragraph 5) or the issue or grant of any option over the unissued share capital of a Group Company or the issue of any new class of shares in the capital of a Group Company.
4. The approval of the business plan (‘Business Plan’) for each Group Company for each financial year of the Group Company (including any amendments, modifications, addendum or additions thereto.)
5. The approval of the annual operating and capital budget (the ‘Annual Budget’) for each financial year of each Group Company (including any amendments, modifications, addendum or additions thereto).
6. The exercise of the borrowing powers of each Group Company other than borrowings approved in an Annual Budget in accordance with paragraph 5 above, or borrowings by any Group Company of any amount which require the provision of guarantees, undertakings or indemnities from the Shareholders as security.for.such borrowings.
7. The creation of any mortgage, charge or other encumbrance over each Group Company’s property or assets.
8. In respect of each Group Company, the provision of any credit, or the making of any loan or advance to, or for, any person, company or body, other than by way of deposit of moneys with a bank or other financial institution the normal business of which includes the acceptance of deposits, or on normal trade credit terms or to employees of the Group Company in accordance with arrangements as approved by the Board.
9. The exercise of each Group Company’s powers to provide guarantees or indemnities.
10. The incurring by a Group Company of any capital expenditure in excess of RM500, 000 (including the acquisition of any undertaking or asset whether under lease or hire purchase or otherwise) other than capital expenditure approved in an Annual Budget in accordance with paragraph 5 above.
II. In respect of each Group Company, the acquisition or disposal, or the agreement to acquire or dispose, of any interest in any land or real property wheresoever situated and of whatsoever description, or the acquisition, incorporation or establishment of any corporation having an interest in land or real property by a Group Company.
12. In respect of each Group Company, the lease, licence or grant of any tenancy in all or any part of any land or real property, wheresoever situated and of whatsoever description, by a Group Company, other than a lease or licence which is in accordance with the leasing guidelines contained in a Business Plan approved in accordance with paragraph 4 above.
13. Any redevelopment, renovation or reconstruction of all of any part of any land or real property, wheresoever situated and of whatsoever description, by a Group Company in excess of RM 500, 000 other than as approved in an Annual Budget in accordance with paragraph 5 above.
14. A Group Company entering into, or varying, or waiving any breach of, or discharging any liability under or terminating, any contract or arrangement relating to service contracts, property management, financial management, insurance, construction and renovation for its property and assets in excess of RM500,000 other than as approved in an Annual Budget in accordance with paragraph 5 above.
15. Any disposal or the acquisition of, or investment in, any undertaking, assets or shares by a Group Company.
16. Any amalgamation or reconstruction of a Group Company, or any merger of a Group Company with any corporation, firm or other body.
17. The dissolution, liquidation, or winding-up of a Group Company.
18. The declaration or payment of any dividends or other distribution of profits of each Group Company (whether in cash or specie).
19. The appointment of or any subsequent change in the key or senior personnel of each Group Company in the capacity of General Manager and above.
20. The approval of the remuneration (including salary, allowances and benefits) of the directors and/or key or senior personnel of each Group Company in the capacity of General Manager and above.
21. The operation by each Group Company of any account(s) in banks or financial institutions, and the appointment of authorised signatories to such account(s).
22. A Group Company entering into, or varying, or waiving any breach of, or discharging any liability under, or terminating, any contract or arrangement (whether legally binding or not) with any of its directors or shareholders or with any Related Party.
23. The establishment of any branch or representative office of a Group Company, or the entry by a Group Company into any partnership or joint venture or co-operation agreement with any other party.
24. The adoption of, or any significant change in, the accounting policies of each Group Company, other than as required by law or accounting policies generally accepted in the jurisdiction applicable to such Group Company from time to time.
25. The commencement, defence or settlement by a Group Company of any litigation, arbitration or administrative proceedings exceeding RM………….
26. The appointment or removal of the Auditors.
27. The issue of any power of attorney by a Group Company.
SCHEDULE 3
Term and Conditions of Shareholders’ Loans
The following terms and conditions shall apply in respect of the Shareholders’ Loans:-
1 Proportionality
Shareholders’ Loans shall be provided by the Shareholders in proportion to their respective Shareholding
Percentages at the same times and on the same terms and conditions.
2 Availability
Shareholders, Loans shall be provided to the Company at such time or times during the term of this Agreement and in such amounts as may be required from time to time pursuant to Clause 6 (A) and/or (B) ; provided, however, that at least fourteen (14) days’ notice shall be given to each Shareholder prior to the date on which any tranche may be required by the Company.
3. Ranking and Denomination
All Shareholders Loans shall constitute unsecured obligations of the Company which rank pari passu with all other unsecured obligations of the Company, unless subordinated to unsecured obligations owed by the Company to lenders (other than the Shareholders). All Shareholders, Loans shall be designated in Ringgit and shall be repayable in such currency unless the Shareholders decide otherwise.
4. Interest
All Shareholders, Loans shall carry interest at such rate as may be determined from time to time by the Board or shall be interest-free, if so determined by the Board.
5. Repayment
The Shareholders’ Loans (including interest accrued thereon, if any) shall be repayable on the occurrence of the earlier of the following dates (and not otherwise):-
(a) the date an which an order shall be made or a resolution shall be passed (whichever shall first occur) for the winding-up or dissolution of the Company; or
(b) the date on which the Board shall have determined, in its absolute discretion, such
Shareholders’ Loans or any part thereof (and interest thereon) shall be repayable
provided’, however, that the Board shall make such determination in respect of
Shareholders’ Loans only on a proportionate basis as between the Shareholders.
6. Transferability
(a) No amount of Shareholders’ Loans may be transferred except in accordance with the
following provisions.
(b) If any of the Shareholders (a ‘Transferor’) shall at any time hereafter sell, transfer or
otherwise dispose of any shares it holds in the capital of the Company (a ‘Disposal,), such Transferor on the occasion of any such Disposal shall be obliged to transfer to the party to whom it shall make such disposal of such shares (‘Transferee,) a proportion of the Shareholders, Loans held by it equal to the proportion which the number of shares the subject of such Disposal shall bear to the aggregate number of such shares held by the Transferor immediately prior to such Disposal.
(c) Each of the Shareholders agrees that the restrictions set out in paragraphs (a) and (b)
above shall fully and effectively bind it in respect of all of the shares at any time held by it in the capital of the Company in addition to its obligations under the Articles and that also it will not make any Disposal of any such shares to any person unless prior thereto such Shareholder and the Transferee shall have entered into a legally binding commitment (in form and content to the reasonable satisfaction of the other Shareholders) to the effect that the Transferee shall be fully and effectively bound by the restrictions set out in this Clause in respect of all shares held or to be held by it in the capital of the Company at any time in the same manner as if it had been an original party hereto (without prejudice to such obligations of the Transferor in respect of any shares in the capital of the Company retained by it).
7. Register
The Company shall maintain a register of the holders of Shareholders, Loans and the amount of
Shareholders, Loans held by them and details of any permitted transfers thereof. Unless
otherwise specifically agreed by the Company in any particular case, the Company shall be
entitled to treat the persons registered as the holders of Shareholders’ Loans as the absolute
owners thereof and shall be entitled to make all payments in respect thereof to such persons or at
their order without any obligation to make any enquiry of any nature.
SCHEDULE 4
Default Call Option Notice
To : [Name of Defaulting Shareholder]
From : [Name of Non-Defaulting Shareholder]
We refer to the Shareholders’ Agreement (‘Shareholders, Agreement’) dated [ ], made between us in relation to [ ] (‘Company’). Terms defined in the Shareholders’ Agreement have the same meaning herein. We hereby give you notice that we require you to sell to us in accordance with the terms and conditions of the Default Call Option [specify number] shares held by you in the capital of the Company and such loans advanced by you to the Company, such sale to be completed on the date specified in Clause 7(E) of the Shareholders’ Agreement.
Yours faithfully
for and on behalf of
(Name of Non-Defaulting Shareholder]
By :
Name :
Title :
IN WITNESS WHEREOF the Parties have hereunto executed this Shareholders’Agreement.
RPPL
‘
Signed by )
for and on behalf of )
)
in the presence of:- )
Name of Witness: Address
Fax No.
Attention
Signed by )
for and on behalf of )
)
in the presence of:- )
Name of Witness:
Address
Fax No.
Attention
