Deed of Accession (for Shareholders Agreement) - Form Pro · AU-law

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Deed of Accession (for Shareholders Agreement) - Form

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DEED OF ACCESSION

________ (ACN ________)

THIS DEED OF ACCESSION is made on the ________ day of ________

BETWEEN THE COMPANY (hereinafter "the Company"):

________ (ACN ________) of the following address:

________

AND THE NEW PARTY (hereinafter "the New Party"):

________

AND THE SELLING SHAREHOLDER (hereinafter "the Selling Shareholder"):

________

AND THE EXISTING PARTIES (hereinafter "the Existing Parties" or individually "the Existing Party"):

FIRST EXISTING PARTY

________

§ 1. BACKGROUND

(1) The Company, the Selling Shareholder and the Existing Parties are all parties to the shareholders agreement dated ________ ("the Shareholders Agreement").

(2) The Selling Shareholder wishes to sell, and the New Party wishes to buy, the Transfer Shares.

(3) As required under the Shareholders Agreement, a party that wishes to become a party to the Shareholders Agreement must execute a deed of accession before that party is registered as a Shareholder of the Company.

(4) The Selling Shareholder wishes to be released from its obligations under the Shareholders Agreement.

(5) The Parties to this Deed have agreed to the New Party becoming a party to the Shareholders Agreement, and the Selling Shareholder being released from its obligations under the Shareholders Agreement, on the terms set out in this Deed.

§ 2. DEFINITIONS

In this Deed, unless the context otherwise requires:

"Commencement Date" means the date the New Party is registered as a Shareholder and becomes bound by the terms of the Shareholders Agreement, being the ________ day of ________.

"Company" means ________ (ACN ________).

"Corporations Act" means the Corporations Act 2001 (Cth).

"Deed" means this Deed of Accession.

"Deed Date" means the date of this Deed, as recorded on the first page of this Deed.

"Existing Parties" means each Existing Party cumulatively.

"Existing Party" means each party to the Shareholders Agreement, except for the Company or the Selling Shareholder.

"Insolvency Event" in relation to a Party occurs if that Party:

(a) is a company and:

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(b) is a natural person and:

(I) presents a debtor's petition or becomes an insolvent under administration within the meaning of the Bankruptcy Act 1966 (Cth); or

(II) an application or creditor's petition is made for the Party's bankruptcy; or

(III) a creditor takes possession of some or all of the Party's property or assets; or

(IV) a trustee for creditors, trustee in bankruptcy, receiver, receiver and manager or other similar person is appointed to handle some or all of the Party's property or assets; or

(V) the Party enters, or proposes to enter, a debt agreement or personal insolvency agreement with a creditor; or

(I) one or more partners in the Party's partnership (hereinafter "Partner") becomes bankrupt or insolvent; or

(II) an application or creditor's petition is made for a Partner's bankruptcy; or

(III) a creditor takes possession of some or all of the property or assets of a Partner or of the Party's partnership (hereinafter "Partnership"); or

(IV) a trustee for creditors, trustee in bankruptcy, receiver, receiver and manager or other similar person is appointed to handle some or all of the property or assets of a Partner or of the Partnership; or

(V) a Partner enters, or proposes to enter, a voluntary arrangement with a creditor.

"New Party" means ________.

"Parties" means the parties to this Deed.

"Party" means a party to this Deed.

"Selling Shareholder" means ________.

"Shareholders Agreement" means the shareholders agreement dated ________ in relation to the Company.

"Shareholder" means a shareholder of the Company.

"Shares" means shares in the Company.

"Transfer Shares" means the following Shares, which are to be issued to or transferred to the New Party:

________

§ 3. INTERPRETATION

In this Deed, unless the context otherwise requires, the following rules of interpretation apply:

(a) Words referring to one gender include every other gender.

(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.

(c) If a word or phrase is defined in this Deed then any grammatical variations of that word or phrase have a corresponding meaning.

(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.

(e) Any reference to time is a reference to time in ________.

(f) In the event that something must be done under this Deed on or before a particular date, if that date falls on a day which is not a business day, then that thing must be done on or before the next business day.

(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

(h) Headings and titles are included in this Deed for convenience only and do not affect the interpretation of this Deed.

(i) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.

(j) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.

(k) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.

(l) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.

§ 4. ACCEPTANCE OF NEW PARTY

The Company, the Selling Shareholder and the Existing Parties hereby:

(a) consent, irrevocably and unconditionally, to the New Party becoming, from the Commencement Date, a holder of the Transfer Shares;

(b) consent, irrevocably and unconditionally, to the New Party becoming, from the Commencement Date, a party to the Shareholders Agreement and bound by the terms of the said Shareholders Agreement;

(c) agree and acknowledge that, from the Commencement Date, the New Party will have the rights, entitlements, and benefits afforded to Shareholders of the Company, as set out in the Shareholders Agreement;

(d) agree and acknowledge that, from the Commencement Date, the New Party will have the obligations and liabilities applying to Shareholders of the Company, as set out in the Shareholders Agreement; and

(e) consent, irrevocably and unconditionally, to the New Party accepting, from the Commencement Date, the liabilities set out in the "New Party Acknowledgment and Acceptance of Liability" clause of this Deed.

§ 5. SHARES AND SHAREHOLDERS AGREEMENT

From the Commencement Date, the New Party will be registered as a holder of the Transfer Shares and will be deemed to be a party to the Shareholders Agreement.

§ 6. NEW PARTY ACKNOWLEDGMENT AND ACCEPTANCE OF LIABILITY

The New Party hereby covenants and agrees for the benefit of the Company, the Selling Shareholder and each Existing Party that:

(a) the New Party has reviewed a copy of the Shareholders Agreement;

(b) the New Party will be bound by the terms of the Shareholders Agreement from the Commencement Date; and

(c) the Company, the Selling Shareholder and each Existing Party is entitled to rely on the warranties provided by the New Party in the "Warranties by New Party" clause of this Deed.

§ 7. RELEASE OF SELLING SHAREHOLDER

(a) From the Commencement Date, the Selling Shareholder is hereby released and discharged by each other Party to this Deed from any and all demands, liabilities, debts or claims that may arise at any time on or after the Commencement Date and which relate to any of the Selling Shareholder's obligations under the Shareholders Agreement (except as otherwise set out in this clause).

(b) Notwithstanding sub-clause (a) of this clause, nothing in this Deed releases or discharges the Selling Shareholder from any demands, liabilities, debts or claims which arose before the Commencement Date, or which are expressed in the Shareholders Agreement to continue to bind a party after that party has ceased being a Shareholder.

§ 8. WARRANTIES BY NEW PARTY

The New Party hereby represents and warrants that the following statements are, as at the Deed Date, and will be, as at the Commencement Date, true and correct:

(a) the New Party is at least eighteen (18) years of age (where the New Party is a natural person);

(b) the New Party has full legal authority and power to execute this Deed and to perform the New Party's obligations under this Deed and under the Shareholders Agreement;

(c) an Insolvency Event in relation to the New Party has not occurred; and

(d) there are no legal restrictions, court orders, judgments, rulings, regulations, by-laws, governmental policies, restrictions contained in any of the New Party's constituent documents, or restrictions contained in any other agreements, deeds or documents, which may hinder, prevent or restrict the New Party from entering this Deed or from performing the New Party's obligations under this Deed and under the Shareholders Agreement.

§ 9. COSTS

Each Party shall bear its own legal and other costs of and incidental to the negotiation, preparation and execution of this Deed.

§ 10. DUTY

Any duty (including any transfer duty or stamp duty) assessed under the Duties Act of the relevant State or Territory in connection with this Deed or the transfer of the Transfer Shares shall be payable by the New Party.

§ 11. ADDRESS FOR NOTICES

(a) For the purposes of this Deed and the Shareholders Agreement, the New Party's address for service of notices is:

________

(b) For the purposes of this Deed and the Shareholders Agreement, the New Party's email address is: ________

§ 12. FURTHER ASSURANCES

Each Party shall promptly do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably within its power to implement and give full effect to the provisions and intent of this Deed, including without limitation effecting the registration of the New Party as a holder of the Transfer Shares and the recording of the New Party as a party to the Shareholders Agreement.

§ 13. GENERAL

§ 14. GOVERNING LAW AND JURISDICTION

This Deed is governed by and construed in accordance with the laws of ________ and the Commonwealth of Australia, and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from those courts.

EXECUTED AS A DEED on the ________ day of ________

Signed, Sealed and Delivered by ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Cth):

................................................
________, Director

................................................
________, Director / Company Secretary

Signed, Sealed and Delivered by ________:

..................................................
________

In the presence of:

................................................
Witness Signature

................................................
Witness Name

................................................
Witness Occupation

................................................

................................................
Witness Address

Signed, Sealed and Delivered by ________:

..................................................
________

In the presence of:

................................................
Witness Signature

................................................
Witness Name

................................................
Witness Occupation

................................................

................................................
Witness Address

Signed, Sealed and Delivered by ________:

..................................................
________

In the presence of:

................................................
Witness Signature

................................................
Witness Name

................................................
Witness Occupation

................................................

................................................
Witness Address

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