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Shareholders Agreement Template South Africa
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Source: Ooreenkoms - South Africa Agreements
SHAREHOLDERS AGREEMENT
This Shareholders Agreement is made and entered into on this ___ day of ________, 201__, by and between:
_________________________ [shareholder 1]
_________________________ [shareholder 2]
_________________________ [shareholder 3]
1. Interpretation and Definitions
1.1. The headings of the clauses in this agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof.
1.2. Unless the context indicates a contrary intention -
(a) a reference to any one gender include the other two genders,
(b) the singular includes the plural and vice versa, and
(c) natural persons include created entities (corporate or unincorporated) and the state and vice versa.
1.3. the following words and expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings
(a) the Act – the Companies Act, 1973.
(b) the Agreement – collectively, this Shareholders' Agreement and its Annexes;
(c) the Business – the principal business activity of the Company, namely: _____________________________________ [insert purposes of the company and areas of activity].
(d) the Company – _________________________________________ [insert company and number].
(e) the Effective Date – the date indicated above upon which this Agreement became duly signed by all of the Parties hereto.
(f) the Parties – collectively, the Company and the Shareholders.
(g) the Shareholders – collectively, all of the registered shareholders of the Company from time to time.
1.4. The annexes of this Agreement are incorporated herein and shall have the same force and effect as if they were in the body of this Agreement;
1.5. Words and/or expressions defined in any clause in the body of this Agreement shall bear the meaning so assigned to it throughout this Agreement, unless specifically limited to that clause.
1.6. Where an expression has been defined and such definition contains a provision conferring rights or imposing obligations on any Party, effect shall be given to that provision as if it were a substantive provision contained in the body of this Agreement.
1.7. Where a period consisting of a number of days is prescribed, it shall be determined by excluding the first and including the last day, unless the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
1.8. Where figures are referred to in numerals and words, in the event of any conflict between the two, the words shall prevail;
1.9. The contra proferentem rule shall not apply and accordingly none of the provisions hereof shall be construed against or interpreted to the disadvantage of the party/ies responsible for the drafting or preparation of such provision.
1.10. The eiusdem generis rule shall not apply and whenever a provision is followed by the word "including" and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.
1.11. A reference to a statutory enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
1.12. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.13. Any reference in this agreement to a party shall, if such party is liquidated or sequestrated, also be applicable to and binding upon that party’s liquidator or trustee, as the case may be.
1.14. All amounts referred to in this Agreement are exclusive of Value-added Tax (as defined in the Value-added Tax Act, 1991).
2. Suspense conditions
2.1. This Agreement, save for the provisions of this clause which shall be of immediate force and effect, is subject to the fulfilment of the following conditions precedent (the "Conditions"):
(a) that a Management Agreement is duly concluded between the Company and each Shareholder;
(b) that a confidentiality and non-disclosure agreement is duly concluded between the Company and each Shareholder;
(c) that the Memorandum/ Articles of Association in the form of Annex "C" hereto shall be adopted by the Company;
(d) _________________________________ [insert additional conditions]
2.2. The Parties shall use their best endeavours to procure the fulfilment of the Conditions as soon as possible after the Effective Date.
2.3. Should the condition not be fulfilled by __________, then and in such event this Agreement shall be and become null and void and the parties shall be obliged to restore each other, as reciprocal obligations, as near as possible to the status quo ante as at the Effective Date.
2.4. Upon the due fulfilment of the Conditions, the Prior Agreements shall be and become cancelled and of no further force or effect whatsoever, save for any claims between the Parties which may be in existence at the time.
3. Shareholding in the company
3.1. As soon as practicable after the Effective Date, the Parties shall take such steps as may be necessary to procure that the Company's share capital structure corresponds with the following:-
(a) Authorised R __________ divided into _________ Shares.
(b) Issued R __________ divided into _________ Shares and held as follows:
___________ ______ shares ______%
___________ ______ shares ______%
___________ ______ shares ______%
___________ ______ shares ______%
___________ ______ shares ______%
4. Conflicts
4.1. This Agreement records the provisions, terms and conditions which will govern the amendment of the Memorandum and Articles of Association of the Company so as to bring them into conformity with the provisions of this Agreement.
4.2. The provisions of this agreement shall prevail in any conflict between the provisions of this agreement and the memorandum or articles of association of the company.
4.3. The shareholders shall take such steps as may be necessary to alter the memorandum and articles of association of the company so as to reflect the provisions of this agreement.
5. Issue of Shares
No shares shall be issued other than by way of a pro rata rights offer to all the shareholders at the time. If any shareholder shall not follow its rights, he shall be deemed to have renounced same to the other shareholders who do follow their rights in the same proportions as they follow their rights. The shareholders agree that if any shareholder does not have the finances to follow its rights the undertaking of a rights issue shall not constitute unfairly prejudicial, unjust or inequitable conduct.
6. Directorate
6.1. The board of directors shall consist of _____ directors.
6.2. Each Shareholder shall be entitled to appoint 1 (one) director to the board, with the right to remove or replace or fill any vacancy in respect of such director. Each director shall be entitled to appoint (or remove or replace, if it so desires) an alternate director. Each Shareholder undertakes to vote in favour of the other Shareholders' appointments, removals or replacements of alternate directors.
6.3. Any appointment or removal of a director shall be made on written notice to the Company's registered office, signed by the concerned Shareholder.
6.4. Each director shall have 1 (one) vote. Nevertheless, at any meeting of the board, each director shall be entitled to exercise such number of votes as equates to the number of shares held by the Shareholder that appointed him at the date of the meeting concerned (in the event that two or more directors were appointed by the same shareholder, their number of votes shall not be accumulated). No resolution of the Board shall be valid unless it is passed by at least ___% (________ percent) of the number of votes represented and available to be cast at the relevant board meeting.
6.5. Board meetings shall be held at least ___ (_____) times during every financial year of the Company, provided that any Shareholder shall have the right, on not less than ___ (_____) days' written notice to the Company, to convene additional meetings of the Board.
6.6. A quorum at meetings of board shall be the respective duly authorised representatives of 75% (_________ percent) of the number of votes represented and available to be cast at the relevant board meeting. If, within 30 (thirty) minutes after the time appointed for the meeting, a quorum is not present, the meeting shall stand adjourned to the same day in the following week, at the same time and place or, if that day is a public holiday, to the next succeeding business day and if at such adjourned meeting a quorum is not present within 30 (thirty) minutes after the time appointed for the said meeting, the directors present shall, subject to the provisions of the Act, be a quorum. The Company shall be obliged, in relation to any such adjourned meeting, to forthwith notify the directors by telefax of the date, place and time thereof.
6.7. The Company's managing director shall be appointed annually by the Board. The managing director's duties shall include the signature of all instruments and documents relating to the day-to-day activities of the Company or the delegation of such authority in a manner which ensures its continuance to the satisfaction of the board, and the exercise of powers expressly conferred upon him by the board.
6.8. The chairman of the Company shall be elected annually by the Shareholders in general meeting and shall, ipso facto be chairman of the board. If no chairman is elected, or the elected chairman is not present within five minutes of the time fixed for the meeting or is unwilling to preside, those directors in attendance may usually elect one of their number as chairman of the meeting. The chairman shall not have a casting vote at meetings of the board in case of quality of votes.
7. Meetings of Shareholders
7.1. Meetings of Shareholders shall be convened in accordance with the Articles of Association of the Company.
7.2. The chairman of the Company from time to time shall act as chairman of any general meeting of the Company and shall not have a casting vote in case of quality of votes.
7.3. At any general meeting of the Company, each Shareholder shall be entitled to exercise such number of votes as equates to the number of Shares held by such Shareholder at the date of the meeting concerned.
7.4. A quorum at meetings of Shareholders shall be the respective duly authorised representatives of __% (_________ percent) of the Shareholders. If, within 30 (thirty) minutes after the time appointed for the meeting, a quorum is not present, the meeting shall stand adjourned to the same day in the following week, at the same time and place or, if that day is a public holiday, to the next succeeding business day and if at such adjourned meeting a quorum is not present within 30 (thirty) minutes after the time appointed for the said meeting, the Shareholders present shall, subject to the provisions of the Act, be a quorum. The Company shall be obliged, in relation to any such adjourned meeting, to forthwith notify the Shareholders by telefax of the date, place and time thereof.
7.5. Unless otherwise provided to the contrary herein, no resolution of the Company shall be valid unless it is passed by at least __% (_________ percent) of the number of votes represented and available to be cast at the relevant general meeting. Notwithstanding the aforegoing, it is the stated intention of the Shareholders to strive for unanimity in all resolutions to be passed at general meetings.
8. Funding and Guarantee
8.1. Each Shareholder undertakes (to the extent that it has not already done so) to lend and advance to the Company an amount of R_______ forthwith after the Effective Date.
8.2. The Company will endeavour to obtain whatever additional working capital it may require from time to time from its own resources and/or from external or other banking sources.
8.3. All and any amounts lent and advanced to the Company shall be credited to the respective Shareholder in the financial records of the Company.
8.4. All repayments by the company to the shareholders shall be made pro rata to their respective loan accounts but to the extent that any shareholder's loan account exceeds its/his pro rata share based on its/his shareholding in the company such excess shall first be repaid.
8.5. Each shareholder undertakes to guarantee, jointly, the obligations of the Company to third parties as shall be necessary to enable the company to conduct its business from time to time and hereby indemnify each other pro-rata to their respective shareholdings in the Company.
9. Transfer of Shares
9.1. Where one of the Shareholders (hereinafter, the "Offeror") desires or proposes in any way to dispose of its shares, he shall give written notice (the "Offer Notice") to the other Shareholders (the "Offerees") in which it shall specify that it wishes to dispose of all its shares in the Company and its claims on loan account against the Company.
9.2. The Offer Notice shall only be capable of being given in respect of the entire shares of the Offeror and shall not be revocable until the expiry of the Acceptance Period (as defined below).
9.3. The Offerees shall have the right, for a period of __ (_______) days after receipt of the Offer Notice (the "Acceptance Period"), to purchase the Offeror's shares by an unconditional written notice to that effect (the "Acceptance Notice") to the Offeror no later than the end of the Acceptance Period. Upon timeous receipt of the Acceptance Notice, a contract shall be deemed to have been concluded between the Offeror and the Offerees for the sale of all of the Offeror's shares.
9.4. The purchase price in respect of the Offeror's shares shall be the value of the company (as determined by the company's auditors) multiplied by the number of Offerorws shares and divided by the total number of shares of the company. Claims shall be the face value of its loan account claim against the Company as at the date of the Acceptance Notice.
9.5. On the 3rd (third) business day succeeding that upon which it received the Acceptance Notice (the "Closing Date"), the Offeror shall deliver to the auditors of the company the share certificates relating to the shares, together with transfer forms (in blank as to transferee) duly signed by the registered holders thereof and currently dated, a written cession of the Claims (in blank as to transferee) duly signed by the Offeror and currently dated, and the written resignation of all of the Offeror's nominees as directors of the Company.
9.6. Symultaniously, on the Closing Date, the entire purchase price in respect of the Offeror's Shares shall be paid by the Offerees.
9.7. Each of the Offerees shall be entitled to take up such proportion of the Offeror's Shares as is in proportion to such Offeree's shareholding in the Company at the time. in the event of any of the Offerees failing or declining to exercise the right to purchase its entitlement to the Offeror's Shares, the remaining Offerees shall be entitled to acquire such Offeree's entitlement to the Shares on offer, either entirely or pro rata, mutatis mutandis as set forth above.
9.8. Should no acceptance notice be received prior to the expiry of the Acceptance Date the Offerees' right to acquire the Offeror's Shares in terms of the Offer Notice shall ipso facto lapse and be of no further force or effect whatsoever and the Offeror may sell his shares to third parties.
10. Dividends
10.1. The power to declare dividends or make other payments to shareholders shall vest in the shareholders.
10.2. The shareholders shall procure that the company shall, in respect of each of its financial years, pay dividends.
10.3. The payment of dividends is subject to the directors of the company being reasonably satisfied as to the requirements of solvency and liquidity having been adhered to as required in terms of the Act, and subject to the shareholders being reasonably satisfied in good faith as to the requirement of prudence as regards the company having been adhered to.
10.4. The dividends shall be equal to such percentage of the amounts available in law, received by the company by way of income (including dividends or like payments received but excluding any amounts which are capital in nature).
10.5. Despite the above, no dividends shall be paid until such time as all shareholders’ loans and any interest thereon, if applicable, and all amounts owing to funders of the company have been paid.
10.6. The shareholders shall declare the dividends and procure that payment shall be made within 30 (thirty) days after the annual financial statements of the company.
11. Domicilium citandi et executandi
11.1. The parties choose as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:
(a) For _______________[Shareholder 1]:
To: ____________________
Address: ________________
Telefax: __________________
Email: _________________
(b) For _______________[Shareholder 2]:
To: ____________________
Address: ________________
Telefax: __________________
Email: _________________
(c) For _______________[Shareholder 3]:
To: ____________________
Address: ________________
Telefax: __________________
Email: _________________
11.2. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by telefax or email.
11.3. Any Party may by notice to the others change the physical address chosen as its domicilium citandi et executandi to another physical address in the Republic of South Africa, or its telefax number, or its Email provided that the change shall only become effective on the seventh day after receipt of the notice by the addressees.
11.4. Any notice to a party –
(a) delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery;
(b) sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th (seveth) business day after posting (unless the contrary is proved);
(c) sent by telefax to it at a telefax number chosen as its domicilium citandi et executandi, shall be deemed to have been received on the date of despatch (unless the contrary is proved);
(d) sent by e-mail to it at an email address chosen as its domicilium citandi et executandi, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
11.5. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
12. Arbitration
12.1. In the event of any dispute between the Parties with regard to the interpretation, implementation, enforcement, termination, cancellation, invalidity or alleged invalidity of this Agreement or any other dispute relating to or arising from this Agreement will (unless interim and/or urgent relief is sought from a competent court) be referred to arbitration.
12.2. The arbitrator shall be appointed by/and in accordance with __________________.
12.3. The arbitration will be held in ____________.
12.4. The parties shall use their best endeavours to ensure that the arbitration is concluded and a decision handed down within 30 (thirty) days after the arbitration has been demanded.
12.5. The provisions of the Arbitration Act, 1965 shall apply to this arbitration.
12.6. The Parties are obliged to maintain the utmost confidentiality with regard to all matters relating to the arbitration, save as otherwise expressly and peremptorily required by law.
12.7. The provisions of this clause constitute an irrevocable consent by the Parties to any of the proceedings contemplated therein and none of the Parties shall be entitled to claim that it is not bound by it and are severable from the remainder of this Agreement and shall remain of full force and effect, notwithstanding any termination, cancellation, invalidity or alleged invalidity of this Agreement for any reason whatsoever.
12.8. The receipt by any Party of a notice calling for arbitration in terms of this clause shall constitute the service of a process for the purposes of interruption of prescription in terms of Section 15 of the Prescription Act, 1969.
13. Miscellaneous
13.1. Assignment. Neither Party may assign, sell, license, grant, dispose or otherwise transfer any of its rights and obligations under this Agreement, or any part thereof, without the prior written consent of the other Party.
13.2. Binding Effect. This Agreement shall be binding on the Parties their heirs, assigns and successors-in-title.
13.3. Entire Agreement. This Agreement represent and constitute the entire agreement between the parties, and supersedes and merges all prior negotiations, agreements and understandings, oral or written, with respect to its subject matter.
13.4. Modification; Waiver. This Agreement may not be altered, amended or modified in any way except by a writing signed by all the Parties. Neither the waiver by any of the Parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of any of the Parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.
13.5. Severability. If any provision of the Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder shall be valid and enforceable and the parties shall negotiate in good faith a substitute, valid and enforceable provision which most nearly affects the parties’ intent in entering into this Agreement.
13.6. Relationship of the Parties. Nothing contained in this Agreement shall be construed as constituting any of the Shareholders as the partner/s of any of the other/s of them or any Shareholder/s as the agent/s of either the Company or any of the other Shareholder/s.
13.7. Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the Republic of South Africa. Any dispute or claim arising out of or in connection with this Agreement, including regarding its existence, validity or termination, shall be submitted to the ______________ Court, that shall have sole and exclusive jurisdiction.
14. Costs
Each party shall bear its own costs incidental to the negotiation, preparation, conclusion and implementation of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement at the date first above written.
For: _____________________ [shareholder 1]
By: _____________________
Signatory, who warrants that he/she is duly authorised hereto
Place: ___________________
Date: ___________________ Witness: _____________________
For: _____________________ [shareholder 2]
By: _____________________
Signatory, who warrants that he/she is duly authorised hereto
Place: ___________________
Date: ___________________ Witness: _____________________
For: _____________________ [shareholder 3]
By: _____________________
Signatory, who warrants that he/she is duly authorised hereto
Place: ___________________
Date: ___________________ Witness: _____________________