DRAFT

AGREEMENT

THIS

SHAREHOLDERS

AGREEMENT

made

at

Mumbai

this

_________________ day of ___________ in the Christian Year .. BY

AND AMONG;

(I) ..;

(II) ; AND

(III) ..(which expression shall unless it be repugnant to the

context or meaning thereof shall be deemed to mean and include its
subsidiary and holding Companies and their respective successors and
assigns) of the THIRD PART;
For the sake of brevity the parties of the First Part, Second part and the
party of the Third part shall be collectively referred to as Parties;

IT IS HEREBY AGREED, RECORDED AND CONFIRMED BY AND

AMONGST THE PARTIES HERETO AS UNDER:-

1.

RECITALS AND OBJECTIVES:

(a)

The Group has more than . experience

. in the area of . and ..

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(b)

. offers a wide and comprehensive range of ..

products

under

their

various
in

the

registered

trade

industrial

marks

sectors

of

need

to

(c)

The

recognizes

the

.
(d)

Each parties recognized the interest of implementing a

synergetic approach of their markets and customers in India
.

(e)

. The copy of Memorandum and Articles of

Association of the Company is annexed as Annexure 1 to
this agreement.

(f)

(g)

The authorized share capital of the Company is Rs.

./- (Indian Rupees .. only) divided into
(Words .) Equity Shares of Rs.
./-

(.)

each,

which

the

Company

may

increase from time to time.

(h)

The issued and paid up capital of the company is

. each,

(i)

The initial subscribers to the Memorandum of Association

were:(1)

Mr. .
And

(2)
(j)

Mr. .

Subsequently, . was also issued shares upto .. of

total issued and paid up capital of the Company.

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(k)

The present shareholding pattern of the company is as

follows:(i)

(..)
(ii)

.
()

(l)

----------Total

========
. can be invited to participate in the
Company

after

joint

agreement

between

parties

.. and after following the due process of law in

accordance with the Companies Act, 1956.
(m)

The Company shall promote the sales of the product of the

.. .. and advertise and generate
a market of prospective clienteles under the brand/trade
name of the Company ..

(o)

The Company will also act as the . partner of

products or any other . products with
mutual consent of parties of the First and Second Part.

(p)

The area of the operational activities of the Company shall be

initially restricted only to India .

(q)

2.

The parties to this agreement are hereby ..

DURATION:
(a)

The Company shall use its best efforts and endeavors for
with protection of all the Intellectual
Property Rights of Mder. If any disagreement arises between

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the parties at any stage, the Company will be dissolved or
wound up (in accordance with the provisions of the
Companies Act, 1956) or taken over by one group and all the
rights and obligations of the parties shall come to an end as
set out hereinafter.
4.

MANAGEMENT OF THE COMPANY:(a)

The Company shall be managed by its Board of Directors

which shall presently consist of ..
The name of the Directors is as under:-

(i)

(ii)

(iii)

______________________

(iv)

(v)

(vi)

______________________

(b) (i) The Board of Directors meeting of Company shall be held as

per the provisions of Companies Act 1956 with at least
fifteen days notice (in English language with sufficient
details/agenda) to each Director. In case of special and
emergency meetings the notice period can be reduced or
waived with the Written Consent of a majority of the
members of the Board of Directors, which majority shall
include at least one Director from the ..and one
from ...

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(ii)

A majority of the Directors shall be necessary to form a

quorum for a valid Board of Directors meeting. If the meeting
of the Board could not be held for want of Quorum, then
unless the articles otherwise provide, the meeting shall
automatically stand adjourned till the same day in the next
week, at the same time and place, or if that day is a public
holiday, till the next succeeding day which is not a public
holiday, at the same time and place. The Board of Directors
shall supply each Director with a copy of the minutes of
such meeting reflecting any resolutions passed at such
meeting for approval as soon as practical (but in no event
later than 10 Business days following such meeting).

(iii) Subject to the applicable Law, the Directors shall be

permitted to participate in Board meetings by teleconference
or .. Notwithstanding the foregoing, the Board
may act by a written resolution on any matter, except
matters that by Law may only be acted upon at a meeting.
Subject to the applicable Law, no written resolution shall be
deemed to have been duly adopted by the Board unless such
written resolution has been circulated to each member of the
Board and approved by the requisite number of Directors as
provided in various clauses in this Agreement.
(iv)

Subject to the provisions of this Agreement and applicable

Law, the Board of Directors shall have full authority with
respect to the management of the Company.

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(c)

The parties shall exercise their voting rights at Board

Meetings and General Body Meetings and to uphold and
effectuate the provisions of this Agreement.

(d)

The Company has its Bank Account with . Bank,

which bank account, as also any new bank accounts shall be
operated by the Directors of the for convenience
as they are based in India.

5.

SHAREHOLDERS MEETINGS:
All Shareholder Meetings shall be held in accordance with the
following procedures:
(a)

Regular Shareholders Meetings shall be held once annually

with at least 21 days advance notice to each shareholder in
the Company, unless all the shareholders consent to a
shorter notice period. Special Shareholders Meetings may be
called by the Board on 21 days advance notice to each
shareholder, unless all the shareholders consent to a shorter
notice period.

(b)

Notices of Shareholder Meetings shall specify the place, date

and time of the meeting and set forth in full and sufficient
details the business to be transacted thereat together with a
copy of the draft resolutions and no business shall be
transacted at such meeting unless the same has been stated
in the notice convening the meeting.

(c)

The quorum for the Shareholders Meeting shall consist of at

least two shareholders, such shareholders attending a validly
convened meeting, proper notice of which has been served on

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each of the shareholders in accordance with this Agreement,
the Charter Documents and the requirements of Law. If no
quorum is present, the meeting shall be adjourned to the
same day, place and time in the next succeeding week (it
being understood that the agenda for such adjourned
meeting shall remain unchanged) until such time as the
required

quorum

is

present.

Actions,

decisions

and

resolutions of the shareholders shall be taken (i) upon the

affirmative vote of a majority of the shareholders present at a
validly convened Shareholders Meeting or (ii) upon the
unanimous written consent of all the shareholders. The
Chairman of the Board of Directors shall also be the
chairman for all the Shareholders Meetings.
(d)

The Shareholders shall be permitted to participate in the

Shareholder

Meetings

by

proxy,

teleconference

or

videoconference (but only to the extent permitted by Law).

Any person possessing a proxy or power of attorney or other
such written authority with respect to any Equity Shares
shall be able to vote on such Equity Shares and participate
in the meetings as if such a person was a Shareholder of the
Company.
(e)

In the event of proxy voting, the Shareholder shall inform the

Company at least 7 days prior to the date of the meeting, the
name, address and contract details of such proxy.

6.

MAINTENANCE OF BOOKS AND RECORDS:

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(a)

The Company shall keep true and accurate books of account

and records in English in accordance with generally accepted
accounting principles in effect from time to time in India and
in a manner necessary for compliance with any requirements
of Law that are applicable to the Company. The relevant
financial statements and information including profit and
loss account, Cash Flow Statement, Summery Performance
etc. shall be furnished to ...

7.

OBLIGATIONS OF THE PARTIES:

(a)

The obligations of the Company are as under:(i)

(ii)

(iii)

To use the technology know-how, patent, trademark,

process

and

other

intellectual

properties

and

diversified methods and aspects of manufacturing

assigned by to the Company in the best
possible manner and extent.
(iv)

To make full efforts and to use its best endeavor for

generating sales, promotion and prospective clientele
including but not limited to the following area of
operations namely:*

..

..

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*

..

..

..

.
(v)

If mutually agreed by the parties, to further extend the

operations

in

and

to

undertake

. on the basis of the technology, know

how etc.
(vi)

To plan, set up, and establish the Company for all its
operational purposes

(vii)

To recruit and/or appoint, qualified, expert persons

such as Chartered Accountants, Lawyers, Company
Secretary, Marketing professionals etc. as may be
required for carrying on the activities of promotion,
sales,

manufacturing,

supervision,

Marketing,

Finance, Support Staff etc., as may be required by the

Company for its day to day functioning.
(viii)

To apply for and obtain various licenses, permissions

and other statutory compliances as may be required
for commencing and running the activities of the
Company from any statutory body or authority.

(ix)

To defray all the operating expenses from the said

bank account, such as salary, wages, rents, electricity
charges, repairs, maintenance etc., and all other
general expenses which are necessary for the purpose
of running and conducting business, including but not
limited to VAT, Service Tax and other Mandatory

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Charges, Property Taxes, etc., and further to meet with
all the expenses of the Company.
(x)

To keep confidential all or any commercial, scientific or

technical information brought into the Company; to
promote, market and sell all the products under the
Company brand/trade name; and to raise invoices in
the name of the Company irrespective that the
products are imported, manufactured or finished by
the Company.

(xi)

To expand the business of the Company by all lawful

methods and processes.

(xii)

The

Company

shall

indemnify

each

Director

(collectively the Indemnified Persons) against any

losses, claims, damages, liabilities, judgments, fines,
obligations and expenses of any kind or nature
whatsoever (including any investigative, legal and other
expenses

incurred

in connection

with, and any

amounts paid in settlement of any pending or

threatened legal action or proceeding) arising in the
course of their functioning office as Directors and to
the extend that such Indemnified Person may at any
time become subject to or liable for directly or
indirectly in connection with their status as Directors
or Officers of the Company or any of their acts, deeds,
things or service to or on behalf of the Company,
except where such claims arise out of the gross

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negligence,

willful

misconduct

or

fraud

of

such

Indemnified Persons.
(xiii) It shall not issue any additional Equity Shares or
convertible instruments after the date hereof without
the unanimous written consent of all the shareholders
of the Company and this restriction is with a view to
ensure that the agreed ratio of shareholding of the
.

(b)

The obligations of ..are as under:(i)

From time to time, bring its financial contribution into

the Company for investment as also to meet all the
running costs of the Company in the proportion of its
share holding in the Company. Since .. is a
foreign Company, at all times it may not be directly
permitted by Reserve Bank of India to bring in funds
to the Bank Account of the Company. In such
circumstances, . shall arrange for Bank
Guarantee/s (of a mutually acceptable Bank) letters of
credit etc. in favour of the Company for the required
amount either in rupees or foreign currency.

(ii)

To permit and make available its technology, knownhow, patent, name, trademarks, processes, intellectual
property and diversified methods and aspects of
manufacturing and marketing to the Company and to
make

available

appropriate

technical

support,

assistance. To share the profits and loss of the

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Company to the extent of its share holding in the
Company.
(iii)

To

provide

assistance

and

co-operation

to

the

Company to raise loans from private parties, banks or

financial

institutions

either

jointly

with

the

...
(iv)

To assign its existing clientele in India and Indian subcontinent in favour of the Company so that the
Company can operate as its sole representative for the
said regions.

(v)

To devote sufficient time, efforts and resources for

ensuring success of the SPV.

(vi)

During the validity period of this agreement, not to

enter into any agreement for establishment of similar
business relations as those presently established with
the under this Agreement with some
third party in India in respect of the same products
and in the same area of operations.

(vii)

Not to commercialize the market or sell its product

within the restricted area of activities and operations
being India and Indian sub-continent henceforth
through any other persons other than the Company.

(viii) To keep confidential all/any scientific commercial or

technical

information

brought

into

the

company

including the list of clients or prospective clients of the

company. This obligation will cease as soon as such
information becomes public.

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(ix)

Not to enter in any investment process and/or to

create any debt in the name of the Company, save and
except in the normal course of the business, without
the consent of the ...

(c)

The obligations of the are as under:(i)

To comply with all formalities with the ROC, the RBI

and all other statutory/regulatory authorities.

(ii)

From time to time bring their financial contribution

into the Company for investment as also to meet all
running cost of the Company in proportion of its share
holding in the Company.

(iii)

To promote the sales of the wide and comprehensive

range

of

paints

and

coating

products

presently

manufactured by .. and/or its subsidiaries in

the area of its operations being India and Indian subcontinent and also to bring in their commercial and
networking contacts and experience.
(iv)

To advertise, market and generate new clientele for the

purpose of the SPV.

(v)

To share the profits and loss of the Company to the

extent of its share holding in the Company.

(vi)

To

provide

assistance

and

co-operation

to

the

Company to raise loans from private parties, banks or

financial institutions either jointly with the or
individuality.

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(vii)

To devote sufficient time, efforts and resources for

ensuring success of the SPV.

(viii) Henceforth, not to enter into any agreement for

establishment of similar business relations as those
presently established with .. with some third
party in respect of the same products and/or in the
same area of operations, either in India or Indian subcontinent.
(ix)

To keep confidential all/any scientific commercial or

technical

information

brought

into

the

company

including the list of clients or prospective clients of the

company. This obligation will cease as soon as such
information becomes public.
(x)

Not to enter in any investment process and/or to

create any debt in the name of the Company, save and
except in the normal course of the business, without
the consent of .

8.

BREACH,
TERMINATION,
TERMINATION:

(a)

AND

CONSEQUENCES

OF

In the event of any breach of the terms and conditions

recorded herein by either party, the aggrieved party shall give
a notice in writing to the defaulting party to remedy the
breach within a period of thirty (30) days from the date of
receipt of the notice. If the defaulting party fails to remedy
the breach within the aforesaid period, this Agreement shall
ipso facto stand terminated without any further notice. Such

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termination shall be without prejudice to the other rights
and remedies available to the parties in law.
(b)

Upon termination of this Agreement in terms of (a) above:

(i)

Each party shall not carry on business of promotion,

sales, manufacturing etc under the Company name (or
otherwise) or utilize its brand/trade name technology,
know how etc. or solicit or attempt to solicit the clients
of the Company.

(ii)

In the above circumstances, the shares of the parties

and assets of the Company shall be valued by the
reputed firm of Chartered Accountants in India to
ascertain the fair market value of the said shares and
assets.

(iii)

If the .. refuses to Purchase the said

shares of the Mder within sixty (60) days of the
written

notice

sent

by

the

and

the

. offering the said shares at the valued

price, in that event the said shall be entitled
to sell their shares to any third party/outside person
at the price as may be deem fit and proper by the
Mder and vice versa.
(iv)

If . successfully purchases the shares of

, in that event it shall

9.

VOLUNTARY WINDING UP OF THE COMPANY:

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(a)

The parties of the Second and third part agrees to dissolve,

liquidate and wind up the Company, following the due
process of law, in the following cases:(i)

Acquisition

or

Merger

of

..

or

the

. with any Company competing

in any place of the World in the same area of activities.
(ii)

Co-operation by one of the aforesaid parties with a

competitive entity within the markets to which this
agreement extents.

(iii)

Voluntary decision by the Board of Directors to wind

up the company.

(iv)

In case any sentence against one of the above referred

parties is made for any breach of its fiscal or legal
obligations in the designated area of operation.

10.

RELATIONSHIP OF THE PARTIES:

This Agreement and Understanding between the parties is on a
principal-to-principal basis for the purpose of operating the
company and this Agreement shall not create a partnership,
agency or any other fiduciary relationship among themselves.

11.

BENEFIT OF THE AGREEMENT:

This Agreement is solely for the benefit of the parties hereto. For
avoidance of doubt, this agreement does not and shall not confer
rights upon a person who is not a party to this Agreement.

12.

EXCLUSIVITY AND RESTRICTIONS:

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(a)

The parties shall not be directly and/or indirectly entitled to

assign their interest under this Agreement to any third
party/outside party without the written consent of the other
party and any attempt to do so will be void and not binding
on the other party.

(b)

The Company will be the sole vehicle for conducting the

business within the specified Regions as recorded in this
Agreement. Both the parties covenant and agree that they
shall not, so long as they are connected with the Company,
engage in any proposed activities which are or could directly
or indirectly be competitive with the Business of the
Company including soliciting any customer or prospective
customer of the Company investing in any company engaged
in the same or a similar business as the Company and to
assist any person in any way directly or indirectly in any
activities which are competitive with the Business of the
Company. This restriction is applicable to only the specified
businesses of the company and for the specified region
(territories) only. In case of any doubt, the parties should
take the consent of each other.

13.

AGREEMENT, ARRANGEMENT AND MODIFICATION:

(a)

This Agreement

shall constitute the entire agreement

between the parties hereto in relation to the subject matter

hereof and supersedes all prior understandings, letters of
intent, contracts ,emails,etc., whether oral or written,
between the parties hereto.

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(b)

This Agreement shall insure to the benefit of and be binding

upon the parties and their respective successors, assigns
and subsidiaries (if any) and nothing in this Agreement,
expressed or implied, is intended to confer on any person
other than the parties and their successors, assigns and
subsidiaries any rights, remedies, obligations or liabilities
under or by reason of this Agreement.

(c)

This Agreement may be modified, varied or amended only by

a written instrument duly executed by each of the parties
hereto.

14.

ADDITIONAL DOCUMENTS:
The parties shall from time to time execute and deliver such
further documents as may be reasonably required to give proper
and true effect of and to this agreement.

15.

INVALIDITY:
If any term or provision in this Agreement is held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part to that extent will be deemed
not to form part of this Agreement but the enforceability of the
remainder of this agreement will not be affected.

16.

WAIVER:

Any term or condition of this Agreement may be waived at any

time by the party that is entitled to the benefit thereof, but no

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such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving
such term or condition. No waiver by any party of any term
or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future
occasion. All remedies either under this Agreement or by law
or otherwise afforded, will be cumulative and not alternative.

17.

OUT OF POCKET EXPENSES:

All out of pocket expenses by way of legal expenses, cost for
formation of the Company, Stamp duty charges, cost of preparation
of this agreement etc. shall be to the account of the Company.

18.

NOTICES AND CORRESPONDENCE:

All notices, demands or requests required or permitted under this
Agreement must be in writing, and shall be made by hand delivery,
certified mail, or a similarly internationally recognized courier
service or facsimile, as follows:
(i)

(ii)

.
..
_________________
_________________

19.

APPLICABILITY OF LAWS, DISPUTES, ARBITRATION AND

JURISDICTION OF COURTS:

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(a)

The parties shall at all times and from time to time comply
with the rules, regulations, notifications of Indian laws
including of the Reserve Bank of India (RBI), The Securities
and Exchange Board of India (SEBI) and/or any other
statutory body or authority and to comply with provisions of
the Foreign Exchange Management Act, 1999 (FEMA),
Companies Act 1956 and other statutory provisions. The
parties shall co-operate each other for the same.

(b)

This Agreement and any disputes, claims or controversies

arising from, related to or in connection with this Agreement
shall be constructed in accordance with the Laws of the
Republic of India without regard to its conflict of law
principles.

(c)

In the event that any dispute, difference, claims, questions

or

controversies

arise

relating

to

this

agreement

or

interpretation thereof or as to any non compliance, nonpayment, breach of termination or any other matters
incidental

or

consequential

thereto,

the

parties

shall

endeavor to resolve the same mutually and amicably. If the

parties are unable to resolve their differences amicably, the
same shall be referred to the sole Arbitration in accordance
with the provisions of the Arbitration and Conciliation Act,
1996 or any other arbitral law in force in India. The
Arbitration shall be held India and the proceedings shall be
conducted in English Language. Each party shall have a
right to be represented by Advocates, Attorneys and Counsel
of their choice. All the documents submitted as evidence in

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such proceedings shall be submitted in their original
language with an English Translation.
(d)

The Arbitrator shall have no power to add to, modify or

change any provision of this Agreement.

(e)

Notwithstanding

the

foregoing,

each

Party

hereby

acknowledges that the remedies at law of the other Parties

for a breach or an apprehended breach of this Agreement
would be inadequate and, in recognition of this fact, either
Party, in addition to all other remedies that may be available,
shall be entitled to seek equitable relief in the form of specific
performance, injunction or any other equitable remedy from
the Court of competent jurisdiction at .
(f)

Unless otherwise terminated in accordance with the terms

hereof, this Agreement and the rights and obligations of the
Parties hereunder shall remain in full force and effect for as
long as any proceeding pursuant to Arbitration are pending.

(g)

Subject to the above, the Courts at . shall have

exclusive jurisdiction to try and entertain all disputes arising
between the parties hereto.

IN WITNESS WHEREOF the parties have caused this

Agreement to be duly executed as of the date hereof.

THE COMMON SEAL of the

Withinnamed .

..

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)
..

. )
.

THE COMMON SEAL of the

Withinnamed ..
..

.
.

SIGNED AND DELIVERED BY the

..

22