The Share Subscription Agreement And Share Purchase Agreement is a crucial document used in Australian corporate transactions where investors are both subscribing for new shares and purchasing existing shares from current shareholders. This hybrid agreement is particularly useful in growth capital or expansion scenarios where a company needs to raise fresh capital while also providing an exit or partial exit for existing shareholders. The document must comply with Australian corporate law requirements, including the Corporations Act 2001 (Cth), ASIC regulations, and relevant state laws. It typically includes comprehensive details about share pricing, payment terms, conditions precedent, completion mechanics, warranties about the company's business and shares, and various post-completion obligations. The agreement is commonly used in private company transactions, venture capital investments, and private equity deals where investors seek a significant stake through a combination of new and existing shares.
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1. Parties: Identifies and provides details of all parties to the agreement, including the Company, Subscribers, Sellers, and any Guarantors
2. Background: Sets out the context of the transaction, including current shareholding structure and purpose of the agreement
3. Definitions and Interpretation: Defines key terms used throughout the agreement and establishes interpretation principles
4. Subscription for New Shares: Details of new shares being issued, including class, number, and subscription price
5. Sale and Purchase of Existing Shares: Details of existing shares being sold, including class, number, and purchase price
6. Conditions Precedent: Conditions that must be satisfied before completion can occur
7. Conduct Before Completion: Obligations of parties between signing and completion, including business conduct restrictions
8. Completion: Details of completion mechanics, timing, location, and deliverables
9. Warranties and Representations: Standard warranties given by each party regarding capacity, authority, and shares
10. Company Warranties: Specific warranties about the company's business, assets, and liabilities
11. Confidentiality: Obligations regarding confidential information and announcements
12. GST: Treatment of GST in relation to the transaction
13. General Provisions: Standard boilerplate clauses including notices, amendments, and governing law
1. Tag Along Rights: Include when minority shareholders need protection to sell their shares alongside majority shareholders
2. Drag Along Rights: Include when majority shareholders need the right to force minorities to join in a sale
3. Board Appointment Rights: Include when investors are to have board representation rights
4. Anti-dilution Protection: Include when investors require protection against future share issues at lower valuations
5. Restrictive Covenants: Include when key sellers need to be restricted from competing post-completion
6. Earn-out Provisions: Include when part of the purchase price is contingent on future performance
7. Foreign Investment Conditions: Include when FIRB approval is required for foreign investors
8. Guarantees: Include when individual guarantors are backing company obligations
1. Capital Structure: Details of the company's share capital before and after completion
2. Warranties: Detailed list of warranties given by the company and/or sellers
3. Completion Obligations: Detailed list of actions and deliverables required at completion
4. Constitution: Company's constitution or proposed amendments
5. Deed of Accession: Form of deed for new shareholders to accede to shareholders agreement
6. Board Resolutions: Pro-forma board resolutions approving the share issue
7. Transfer Forms: Pro-forma share transfer forms
8. Disclosure Letter: Exceptions and qualifications to the warranties
9. Management Accounts: Recent financial statements of the company
Authors
Relevant legal definitions
Clauses
Relevant Industries
Financial Services
Technology
Healthcare
Manufacturing
Real Estate
Mining and Resources
Retail
Professional Services
Agriculture
Energy
Infrastructure
Telecommunications
Education
Media and Entertainment
Relevant Teams
Legal
Finance
Corporate Development
Compliance
Company Secretariat
Board of Directors
Executive Management
Investment
Mergers and Acquisitions
Due Diligence
Relevant Roles
Chief Executive Officer
Chief Financial Officer
Corporate Lawyer
Investment Manager
Company Secretary
Managing Director
Board Director
General Counsel
Investment Banker
Private Equity Manager
Venture Capital Manager
Corporate Development Manager
Financial Controller
Legal Counsel
Compliance Officer
Transaction Manager
M&A Director
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