Share
purchase is an agreement between the sellers (Company) and buyers
(Shareholders) of the shares that confer rights and impose obligations over and
above those provided by the regulatory laws.
The Share
purchase agreements provide for matters such as restrictions on transfer of
shares, forced transfers of shares, nomination of directors for representation
on boards, quorum requirements, majority rights available to certain shareholders
at the board level or the shareholder level.
Why
is a Share Purchase Agreement Important?
Share
purchase agreements are important because it sets out all the terms of sale
into writing which prevents misunderstandings.
Benefits of entering into Share Purchase Agreement
·
Share purchase agreement provides specific
information on the transfer of shares and rules governing the transfers.
·
Executing agreements allows businesses to raise
revenue for the organization.
·
Share purchase agreement explains special tax
treatments the shareholders may receive for the transfer.
·
Executing share purchase agreements allows the purchaser
to claim dividends on their investment.
·
A dispute over various issues could be resolved between
the purchaser and seller by executing share purchase agreement.
Clause of agreement
It
is essential that some consideration be given in deciding the terms of
agreement. Your share
purchase agreement should contain at least some of the following provisions:
1.Information And Inspection Rights:
The shareholders should be given the right to have access with the
information related to company’s financials.
In addition to the information
and materials to be provided, shareholders should be provided with the right to
visit the office for inspection at its own cost
2.Nomination of Directors
The holders
of certain percentage of shares should be given the right to nominate Director
on the Board or any committees of Board
3.Management related matters:
The holders
of certain percentage of shares should be given the right to make the decisions
with respect to control of the management like setting up the quorum for the
board and shareholders meeting, passing of board and shareholders resolutions.
4.Representation & Warranties
While executing the agreement the company
should set out some of the representation-
§
like the agreement is legal, valid and binding;
§
the company will notify of any material changes
made in the agreement or
§
approvals for the execution of share purchase agreement have been
obtained from the Governmental Authorities
5.Right of first refusal
Entering this clause in an agreement is
useful in case where the existing shareholder in the Company decides to leave,
other shareholders will have the option to purchase the shares before they're
sold to the outsiders.
6.Buy-back Rights:
These give the company the right to claim
back the shares of a certain shareholder on withdrawal or death of the
shareholder.
7.Liquidation
preference
The same clause used by venture capitalists in
their term sheet, should also be a part of share purchase agreement where on
the occurrence of an Exit Event of the company, the proceeds will be
distributed first to the Investors before the other shareholders in order to
recover their investment.
8.Exit Options
The
Company shall provide an exit option to the Investors in the
agreement.
9.Confidentiality
This is the most important clause of any agreement
which clearly spells out that contents of the Transaction Documents
shall not be disclosed to any outsider without their knowledge and consent. In case if
disclosed under the requirement of law/regulation or any order of any court/
authority, it should be clearly specified in the agreement.
It is to be
mentioned that the above clause of share purchase agreement are not exhaustive
and totally varies according to the industry.
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