Share Sale Agreement - Template, Sample Form Pro · AU-law

SHARE SALE AGREEMENT

THIS AGREEMENT ("Agreement") is dated ________.

PARTIES

THE VENDOR ("Vendor"):

________ (ACN ________)

Of the following registered office address:

________

AND THE PURCHASER ("Purchaser"):

________ (ACN ________)

Of the following registered office address:

________

(1) BACKGROUND

(1.1) This Agreement relates to shares in the following company ("the Company"):

________ (ACN ________)
________

(1.2) The Vendor is the registered holder and beneficial owner of the shares in the Company described in the "Sale" clause of this Agreement ("the Shares").

(1.3) Subject to the terms of this Agreement, the Vendor wishes to sell, and the Purchaser wishes to buy, the Shares ("the Sale").

(1.4) The Vendor and Purchaser are referred to collectively as the "Parties" and individually as a "Party".

(2) SALE

(2.1) Subject to and in accordance with the terms of this Agreement, the Vendor agrees to sell, and the Purchaser agrees to purchase, the following shares ("the Shares") in the Company free from all security interests, liens, charges and encumbrances and with all rights attached or accruing to them as at the Closing Date:

________ (________) ________ shares

(2.2) The consideration for the Sale of the Shares is as follows ("Sale Price"):

Sale Price per Share: $________ (________) per Share
Total Sale Price: $________ (________)

(2.3) Title to and beneficial ownership of the Shares passes to the Purchaser on completion of the Sale, being the time at which the Total Sale Price is paid in full and the share transfer documentation is delivered in accordance with the "Closing" clause.

(3) PAYMENT

(3.1) The Total Sale Price will be paid in one lump sum payment on or before the Closing Date.

(3.2) The methods of payment the Vendor will accept are as follows:

________

(4) CLOSING

(4.1) Completion of the Sale ("Closing") will occur on or before ________ (the "Closing Date"), at which time the Total Sale Price will be paid in full. On the Closing Date the Parties will meet as follows:

Address of Closing:

________

Time of Closing: ________

(4.2) On the Closing Date, in exchange for payment of the Total Sale Price, the Vendor must deliver to the Purchaser:

(4.2.1) duly completed and executed instruments of transfer of the Shares in favour of the Purchaser;

(4.2.2) the share certificates for the Shares (the "Share Certificates"), or, if any have been lost or destroyed, an indemnity in a form reasonably acceptable to the Purchaser; and

(4.2.3) any other documents reasonably required to vest full legal and beneficial title to the Shares in the Purchaser.

(4.3) The Parties will procure that the Company registers the transfer of the Shares and updates its register of members under the Corporations Act 2001 (Cth) as soon as reasonably practicable after Closing.

(5) VENDOR REPRESENTATIONS & WARRANTIES

(5.1) The Vendor represents and warrants that the Vendor is the registered holder and beneficial owner of the Shares with good and marketable title, that the Company is duly incorporated and validly existing under the Corporations Act 2001 (Cth) and is in good standing, and that the Vendor has full power and authority to sell and transfer good title to the Shares.

(5.2) The Vendor warrants that the Shares are free from any security interest (including within the meaning of the Personal Property Securities Act 2009 (Cth)), lien, charge, mortgage or encumbrance, and that the Vendor is not a party to any agreement conferring on any third party any right in respect of the Shares or any voting rights in the Company arising from the Shares.

(5.3) The Vendor represents and warrants that there are no restrictions of any kind affecting the Shares, including options, pre-emptive rights, share purchase agreements or redemption agreements, and that all consents required (including under the Company's constitution and any shareholders agreement) for the transfer of the Shares have been or will be obtained prior to Closing.

(5.4) The Vendor further represents and warrants that it will do all things and execute all documents reasonably necessary to perfect the Purchaser's title to and receipt of the Shares.

(5.5) The warranties in this clause are given as at the date of this Agreement and are repeated as at the Closing Date.

(6) PURCHASER REPRESENTATIONS & WARRANTIES

(6.1) The Purchaser represents and warrants that it is duly incorporated and validly existing, that the execution and performance of this Agreement will not place the Purchaser in breach of any contractual obligation to which it is a party, and that it will pay the Total Sale Price in accordance with this Agreement.

(6.2) The Purchaser warrants that it has obtained, or has had the opportunity to obtain and has waived the right to obtain, its own independent legal, financial and taxation advice in relation to the Sale.

(6.3) The Purchaser acknowledges that it fully understands the benefits and risks of purchasing the Shares.

(7) EXPENSES

Each Party is responsible for paying its own costs and expenses in connection with the negotiation, preparation and execution of this Agreement.

(8) TAX

Each Party is responsible for its own tax obligations in relation to the Sale set out in this Agreement. Unless otherwise agreed between the Parties:

(8.1) CAPITAL GAINS TAX: The Vendor is responsible for any applicable capital gains tax payable on the Sale of the Shares under the Income Tax Assessment Act 1997 (Cth).

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(8.3) STAMP DUTY: The Purchaser is responsible for any applicable stamp duty payable on the Sale of the Shares under the relevant duties legislation of the State or Territory of ________.

(8.4) FOREIGN RESIDENT WITHHOLDING: If the Vendor is a foreign resident for tax purposes at the time of the Sale, the Purchaser may be required under the Taxation Administration Act 1953 (Cth) to withhold a percentage of the Sale Price and remit it to the Australian Taxation Office, unless a clearance certificate or variation notice has been provided by the Vendor.

(9) INDEMNITY

(9.1) The Vendor indemnifies and holds harmless the Purchaser from and against any and all losses, damages, liabilities, claims, costs and expenses (including reasonable legal costs) arising out of or in connection with any breach of the representations, warranties or obligations of the Vendor under this Agreement.

(9.2) The Purchaser indemnifies and holds harmless the Vendor from and against any and all losses, damages, liabilities, claims, costs and expenses (including reasonable legal costs) arising out of or in connection with any breach of the representations, warranties or obligations of the Purchaser under this Agreement.

(9.3) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties, and survives termination, expiration or completion of this Agreement.

(10) DISPUTE RESOLUTION

(10.1) In the event of any dispute arising out of or in connection with this Agreement, the Parties agree to first attempt to resolve the dispute through good faith negotiations between persons with authority to settle the dispute.

(10.2) If the dispute is not resolved by negotiation within a reasonable period, the Parties agree to attempt to resolve the dispute by mediation administered by a mediator agreed between the Parties, or failing agreement, a mediator nominated by the President of the Law Society of ________, before commencing any court proceedings.

(10.3) Nothing in this clause prevents a Party from seeking urgent interlocutory or injunctive relief from a court of competent jurisdiction.

(11) TIME OF THE ESSENCE

Time is of the essence in this Agreement.

(12) PURCHASER ACKNOWLEDGEMENTS

(12.1) The Vendor has not made any representations to the Purchaser about the anticipated future performance of the Company.

(12.2) The Vendor has not given any investment advice or financial advice to the Purchaser regarding the Purchaser's purchase of the Shares.

(12.3) The Vendor does not guarantee any specific performance of the Company, including through sales, distributions, or otherwise.

(12.4) The Purchaser accepts that the Sale of the Shares is on an "as is" basis, except in respect of the express warranties given by the Vendor under this Agreement and any rights that cannot be excluded under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or other applicable law.

(12.5) The Purchaser acknowledges that it is responsible for conducting its own due diligence regarding the Company and its investment.

(12.6) The Purchaser confirms that it has independently evaluated this investment and accepts the risks associated with the purchase of the Shares.

(13) CONDITIONS

The Sale of the Shares is subject to the following terms and conditions:

________

(14) CONFIDENTIALITY

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(14.1) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the non-owner Party;

(14.2) is already known, through legal means, to the non-owner Party;

(14.3) is given by the owner Party to third parties, other than the non-owner Party, without any restrictions;

(14.4) is given to the non-owner Party by any third party who legally had the Confidential Information and the right to disclose it; or

(14.5) is developed independently by the non-owner Party and the non-owner Party can show such independent development.

Nothing in this clause prevents a Party from disclosing Confidential Information where required by law, by a regulatory authority, or by the rules of any securities exchange, including under the Corporations Act 2001 (Cth), or where the disclosure of personal information is regulated by the Privacy Act 1988 (Cth).

(15) WRITTEN COMMUNICATION

In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:

(15.1) such notice is properly given if given to the other Party:

(15.1.1) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement; or

(15.1.2) by mail to a mailing address the other Party has nominated, acknowledged or used in connection with this Agreement.

(15.2) such notice is taken to be received:

(15.2.1) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address;

(15.2.2) if sent by prepaid mail within Australia, five (5) days after the date of posting;

(15.2.3) if sent by prepaid mail to or from an address outside Australia, twenty one (21) days after the date of mailing.

(16) GENERAL PROVISIONS

(16.1) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

(16.2) JURISDICTION, VENUE & CHOICE OF LAW: This Agreement is governed by the laws of ________ and the Commonwealth of Australia, and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of that State or Territory and the courts competent to hear appeals from them.

(16.3) MONETARY REFERENCES: Unless explicitly stated otherwise, all monetary amounts referenced in this Agreement, including but not limited to fees, costs, charges, expenses, fines, penalties, allowances, or any other financial considerations, are expressed in Australian dollars (AUD).

(16.4) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party without the prior written consent of the other Party.

(16.5) ENTIRE AGREEMENT: In relation to the subject matter of this Agreement, this Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.

(16.6) AMENDMENTS: This Agreement may only be amended in writing signed by both Parties.

(16.7) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone or otherwise limit any right, remedy or power which that Party may have.

(16.8) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.

(16.9) NO WAIVER: In the event that any Party fails to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.

(16.10) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organisation only. Headings shall not affect the meaning of any provisions of this Agreement.

(16.11) FORCE MAJEURE: The Parties are not liable for any failure to perform due to causes beyond their reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, pandemics, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

(16.12) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the Agreement, which may be the later date.

(16.13) SURVIVAL OF OBLIGATIONS: At the termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.

EXECUTED AS AN AGREEMENT THIS ________

Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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

________, Director

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

________, Director / Company Secretary

Date: ________

(Note: If the Company has a sole director, this Agreement may be signed by that sole director in accordance with section 127(1)(c) of the Corporations Act 2001 (Cth).)

Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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

________, Director

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

________, Director / Company Secretary

Date: ________

(Note: If the Company has a sole director, this Agreement may be signed by that sole director in accordance with section 127(1)(c) of the Corporations Act 2001 (Cth).)