The Share Subscription Agreement And Share Purchase Agreement is a vital legal instrument used in Malaysian corporate transactions when a company seeks to both issue new shares and facilitate the transfer of existing shares simultaneously. This hybrid agreement is particularly useful in scenarios involving corporate restructuring, investment rounds, or strategic acquisitions where investors wish to obtain shares through multiple methods. The document must comply with Malaysian legal requirements, particularly the Companies Act 2016 and Capital Markets and Services Act 2007, and typically includes detailed provisions on share valuation, transfer mechanics, warranties, and both pre- and post-completion obligations. It's commonly used in private equity investments, venture capital transactions, and corporate reorganizations where a combination of new and existing shares is being acquired. The agreement ensures proper documentation of the transaction structure, protects all parties' interests, and maintains compliance with Malaysian corporate and securities laws.
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1. Parties: Identification of the Company, Seller(s) (for SPA), Subscriber(s)/Purchaser(s), and any other relevant parties
2. Background: Recitals explaining the company's current share capital, the context of the transaction, and the parties' intentions
3. Definitions and Interpretation: Comprehensive definitions of terms used throughout the agreement and rules of interpretation
4. Sale and Purchase/Subscription of Shares: Core transaction terms including number of shares, price per share, and total consideration
5. Conditions Precedent: Prerequisites that must be satisfied before completion of the share subscription/purchase
6. Completion: Timing, location, and mechanics of completion, including actions required by each party
7. Payment Terms: Details of how and when payment will be made, including any deposit or installment arrangements
8. Representations and Warranties: Standard and transaction-specific warranties from all parties
9. Pre-Completion Obligations: Obligations of parties between signing and completion, including conduct of business requirements
10. Post-Completion Obligations: Actions required after completion, including registration of share transfers and regulatory filings
11. Confidentiality: Obligations regarding confidential information and announcement restrictions
12. Costs and Stamp Duty: Allocation of transaction costs and stamp duty responsibilities
13. Notices: Process and requirements for serving notices under the agreement
14. General Provisions: Standard boilerplate clauses including governing law, jurisdiction, and entire agreement provisions
1. Tag-Along Rights: Include when minority shareholders need protection to sell their shares on same terms as majority shareholders
2. Drag-Along Rights: Include when majority shareholders need the right to force minority shareholders to join in a sale
3. Non-Competition and Non-Solicitation: Include when selling shareholders need to be restricted from competing or poaching employees
4. Share Retention Clause: Include when subscribers/purchasers need to be restricted from disposing of shares for a certain period
5. Board Appointment Rights: Include when subscribers/purchasers are to have board representation rights
6. Put and Call Options: Include when parties want rights to force sale or purchase of shares in specific circumstances
7. Earn-out Provisions: Include when part of the purchase price is contingent on future performance
8. Foreign Investment Compliance: Include when foreign investors are involved, addressing compliance with Malaysian foreign investment laws
1. Share Capital Structure: Details of the company's share capital before and after the transaction
2. Particulars of the Sale/Subscription Shares: Detailed description of the shares being sold or subscribed for
3. Conditions Precedent: Detailed list of all conditions precedent and supporting documents required
4. Completion Obligations: Detailed list of all documents and actions required at completion
5. Warranties: Comprehensive list of warranties given by the parties
6. Company Information: Key information about the company including financial statements and material contracts
7. Form of Board Resolutions: Template board resolutions approving the transaction
8. Form of Shareholders' Resolution: Template shareholders' resolutions required for the transaction
9. Disclosure Letter: Exceptions and qualifications to the warranties
10. Share Certificate Forms: Template share certificates to be issued at completion
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