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Introduction remarks:
Call option is a standard feature in an investment by a pre-IPO investor. It allows the Option
Holder to exercise the call option and require the Grantor to sell the Call Option Shares to the
Option Holder.
This precedent Call Option Agreement is signed between the shareholder(s) of the company
with the investor simultaneously with the Subscription Agreement and the Shareholders
Agreement. In this precedent Call Option Agreement, the Option Holder can exercise the Call
Option upon the company obtaining the necessary regulatory approvals for the proposed
listing of the Company.
Please exercise caution when using / adopting this template for any other use, as this template
is specific for a proposed listing exercise of a startup company. Seek your legal counsels
advice at all times.
If you do not understand the meaning of the terms used in the Call Option Agreement, do refer
to the glossary at _________________________ for their meanings.
Disclaimer:
The writer of this document and the firm to which the writer is attached to disclaims all liabilities, losses, claims and /
damages due to relying on the contents of the template document in concluding / negotiating a transaction.
DATED ___________________________________
BETWEEN
AND
TABLE OF CONTENTS
RECITALS 1
2. CALL OPTION 5
3. CONDITIONS OF EXERCISE 5
4. COMPLETION 6
6. PUBLIC LISTING 7
7. CONFIDENTIALITY 7
8. REMEDIES 7
9. ASSIGNMENT 8
10. SEVERANCE 8
17. NOTICES 9
SCHEDULE 1 11
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Call Option Agreement Precedent
SCHEDULE 2 12
SCHEDULE 3 13
SCHEDULE 4 14
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Call Option Agreement Precedent
BY AND BETWEEN:-
AND
(The Grantors and Option Holder are hereinafter collectively referred to as the Parties and
individually referred to as Party).
RECITALS
(A) The Company is a private company with its liability limited by shares incorporated in Malaysia
on [Insert Date] under the Companies Act 1965. The details of the Company are more
particularly set out in Part A of Schedule 1 of this Agreement.
(B) The Grantor(s) are as at the date hereof, the legal and beneficial owners of the ordinary
shares of which the details are set out in Part B of Schedule 1.
(C) Pursuant to the Subscription Agreement, the Grantor(s) have agreed to irrevocably and
unconditionally grant to the Option Holder the Call Option relating to the Call Shares in
accordance with the terms and conditions of this Agreement.
(D) The Parties have agreed to enter into this Agreement to set out the terms and conditions of
the call option described in Recital C above.
1.1 Save for the following words and expressions which shall have the following meanings
respectively, all defined terms in this Agreement shall have the meaning specified in the OS
Subscription Agreement:-
Call Option means the call option granted by the Grantor to the
Option Holder under this Agreement, pursuant to which
the Option Holder has the right to require the Grantor to
sell to the Option Holder during the Call Option Period,
upon the terms and conditions of this Agreement, the Call
Option Shares at the Call Option Price;
Call Option Period means the period commencing on the date the Company
has obtained all approvals from the Regulatory
Authorities necessary for a Public Listing and expiring
either:
(a) 30 days later; or
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Call Option Price means the consideration payable by the Option Holder to
the Grantor for the Call Option Shares computed in
accordance with the Call Option Price Formula set out in
Schedule 3 and which is subject to adjustment to be
determined by the Grantor to factor in any changes in the
par value of the Ordinary Shares;
Call Option Shares means such number of Ordinary Shares which are
registered in the name of the Grantor on the date of the
Notice of Exercise and which are equal to [Insert Value]
% of the total number of Ordinary Shares;
Change of Control means any person or group of persons who has or have
Control of the subject company, ceasing to have such
Control, and/or any person or group of persons who
previously did not have Control of the subject company
acquiring such Control;
Completion Date means in relation to the Call Option, the date on which
the sale and purchase of the Call Option Shares is to be
completed pursuant to Clause 4;
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Parties means collectively the Grantor and the Option Holder and
the term Party means either of them as the context
may require;
Public Listing means the official listing and quotation of the entire
issued and paid-up share capital of the ListCo on a
Recognised Stock Exchange, whether directly or
indirectly through the Reverse Take-over Exercise;
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(i) law includes common law and any constitution, decree, judgement, legislation,
order, ordinance, regulation, statute, treaty or other legislative measure in any
jurisdiction or any present or future directive, regulation, request or requirement (in
each case, whether or not having the force of law but, if not having the force of law,
the compliance with which is in accordance with the general practice of persons to
whom the directive, regulation, request or requirement is addressed);
(ii) person includes any individual, company, corporation, firm, partnership, joint
venture, association, organisation, trust, state or agency of a state (in each case
whether or not having separate legal personality);
(iv) the words hereof, herein, hereon and hereunder and words of
similar import, when used in this Agreement will refer to this Agreement as a whole
and not to any particular provision of this Agreement;
(v) a day, month or year will be construed by reference to the Gregorian calendar;
(vi) any reference to a statutory provision will include such provision and any regulations
made in pursuance thereof as from time to time modified or re-enacted whether
before or after the date of this Agreement;
(vii) words importing the singular number will include the plural number and vice versa
and references to natural persons will include bodies corporate and the use of any
gender will include the other gender;
(viii) the headings to the clauses hereof will not be taken into consideration in the
interpretation or construction thereof or of this Agreement;
(ix) references to Recitals, Clauses and Schedules are references to recitals and clauses
of and schedules to this Agreement unless otherwise stipulated;
(x) any reference to this Agreement or any other agreement or deed or document will be
construed as a reference to this Agreement or, as the case may be, such other
agreement or deed or document as the same may be or have been or may from time
to time be amended, varied or supplemented;
(xi) a period of days from the occurrence of an event or the performance of any act or thing
will be deemed to exclude the day on which the event happens or the act or thing is
done or to be done (and will be reckoned from the day immediately following such
event of act or thing), and if the last day of the period is not a Business Day, then the
period will include the next following day which is a Business Day; and
(xii) words denoting an obligation on the Option Holder to do any act matter or thing
includes an obligation to procure that it be done and words placing the Option Holder
under a restriction include an obligation not to permit infringement of the restriction.
1.3 The Schedule to this Agreement and the provisions contained therein will have the same
force and effect as if set out in the body of this Agreement.
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1.4 A Party who breaches any of the provisions under this Agreement will, where such breach is
capable of being rectified or remedied, be afforded the opportunity to rectify or remedy the
breach within 30 days of being notified of such breach by another Party. A breach which is
rectified or remedied within the said 30 day period will consequently cease to be regarded as
a breach.
1.5 The Option Holder can only exercise and pursue their rights and remedies under this
Agreement jointly and not severally.
2. CALL OPTION
2.1 In consideration of the sum of RM[Insert Amount] only paid by the Option Holder to the Grantor
(the receipt, adequacy and sufficiency of which the Grantor hereby acknowledges), the
Grantor hereby irrevocably grants to the Option Holder during the Call Option Period, subject
to Clause 3.2, the Call Option to require the Grantor to sell all the Call Option Shares to the
Option Holder at the Call Option Price.
2.2 The Call Option may be exercised by the Option Holder jointly at any time during the Call
Option Period in respect of all (but not some only) of the Call Option Shares by serving a
Notice of Exercise on the Grantor. The Option Holder is entitled to issue a Notice of Exercise
only once during the Call Option Period. A Notice of Exercise, once issued, shall not be
withdrawn by the Option Holder prior to the Completion Date.
2.3 Subject to Clause 3, the Grantor agrees that it will, upon service of a Notice of Exercise by the
Option Holder, sell to the Option Holder on the Completion Date, the relevant number of Call
Option Shares at the Call Option Price, free from all liens, charges and other encumbrances
and with all rights attaching thereto as at the Completion Date.
2.4 The Parties hereby agree that this Agreement will terminate at 0001 hours on the day after the
expiry of the Call Option Period and thereafter will be of no further force and effect save in
respect of any antecedent breach of the terms hereof.
2.5 The Option Holder agrees that the Grantor is entitled, at any time during the Call Option
Period, to sell any or any of the Call Option Shares to any party, subject to giving the Option
Holder a pre-emptive right of first refusal to buy their proportionate entitlement over the said
Call Option Shares on the same terms and conditions as that offered to the Grantor by the
prospective buyer(s). For the avoidance of doubt, it is agreed that any Call Option Shares
sold by the Grantor will cease to be a Call Option Share. The sale by a Grantor of any of the
Call Option Shares to any such party will not affect the Call Option obligation of the Grantor to
sell the remaining Call Option Shares at the Call Option Price in accordance with the terms of
this Agreement.
2.6 If the Option Holder does not exercise his right of first refusal, as set out in Clause 2.5, the
Grantor shall use its best endeavours to negotiate a sale of a proportionate number of the
Option Holders Shares to the prospective buyer(s) on the same terms and conditions as that
offered to the Grantor. Where as a result of such sale the Grantor continues to hold any
Shares, the Grantor is entitled to require the Option Holder to purchase all Shares still held by
the Grantor at the price offered by the prospective buyer(s) as set out in Clause 2.5.
3. CONDITIONS OF EXERCISE
3.1 The Parties agree that this Agreement will be subject to and conditional upon the Grantor
becoming registered as a shareholder of any Ordinary Shares in accordance with the OS
Subscription Agreement, failing which this Agreement will forthwith terminate and be of no
further effect whatsoever and none of the Parties will have any claims against the other
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hereunder for costs, damages, compensation or otherwise, save in respect of any antecedent
breach of the terms herein and save in respect of the costs to be borne by the Option Holder
pursuant to Clause 13.
3.2 The Option Holder may only exercise the Call Option during the Call Option Period.
3.3 The Parties hereby agree that this Agreement will forthwith terminate and lapse and be of no
further effect whatsoever upon the occurrence of the earliest of the following events:-
4. COMPLETION
4.1 The completion of the sale and purchase of the Call Option Shares pursuant to the exercise
of the Call Option by the Option Holder shall take place at the office of the Company on the
date specified in the Notice of Exercise (which shall be a date falling not earlier than 60 days
from the date of the Notice of Exercise) (in this Agreement referred to as the Completion
Date) when:-
4.1.1 the Option Holder shall pay to the Grantor the Call Option Price for the Call Option
Shares by way of a bank draft or bankers cheque made out in the name of the
Grantor; and
4.1.2 the Grantor shall deliver to the Option Holder duly executed (by the Grantor as
transferor), but undated and unstamped, prescribed form of transfer of securities of
the Call Option Shares with the details of the transferee left blank together with the
share certificates relating to the Call Option Shares.
Upon fulfilment of the obligations of the Option Holder and the Grantor under Clause 4.1.1
and Clause 4.1.2 respectively, the sale and purchase of the Call Option Shares shall be
deemed completed.
4.2 It is hereby expressly agreed that the obligations of the Grantor hereunder shall be
discharged upon its delivery to the Option Holder of the documents referred to in Clause 4.1.2
and that the Option Holder shall not be entitled to make any claim against the Grantor if, for
any reason whatsoever, the Company fails or refuses to register the transfers of the Call
Option Shares or to issue new share certificates in respect of the Call Option Shares in favour
of the Option Holder.
4.3 It is the obligation of the Option Holder to, and the Option Holder shall, do or cause to be done
all acts and things and execute or cause to be executed all documentation and obtain or caused
to be obtained all approvals and consents required to effect the registration of the transfers of
the Call Option Shares in the name of the Option Holder in the register of members of the
Company.
4.4 The Option Holder shall be responsible to comply with all laws, rules, regulations and policy
guidelines and to obtain, at his own cost and expense, such consents and approvals of such
governmental authorities and regulatory authorities as may be necessary in connection with
the purchase and transfer of the Call Option Shares pursuant to the exercise of the Call
Option.
5.1 Each Party hereby represents and warrants to the other Party that:-
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5.1.1 it has the power and capacity to execute, deliver and lawfully perform the terms of this
Agreement; and
5.1.2 its obligations under this Agreement are valid, binding and enforceable in accordance
with their terms.
5.2 The Grantor represents and warrants to and for the benefit of the Option Holder that it will
upon the exercise of the Call Option, remain the beneficial owner of the Call Option Shares
until the Completion Date and that such Call Option Shares will at the Completion Date be
transferred to the Option Holder free and clear of any liens, claims, charges, trust or other
encumbrances.
6. PUBLIC LISTING
6.1 It is the intention of the Parties that the Company will be listed on a Recognised Stock
Exchange. The Parties acknowledge that the Public Listing process may entail the following:-
6.1.2 upon all approvals of the relevant Regulatory Authorities for the Public Listing being
obtained, the acquisition by Newco from all the shareholders of the Company of all the
Shares, the consideration for which will be the issue by Newco to the respective
shareholders of the Company of such number of new shares in Newco in accordance
with the terms of the conditional share sale and purchase agreement that will be
executed between Newco and the shareholders of the Company (in this Clause 6
referred to as the Share Swap Exercise); and
6.1.3 the entire issued and paid up share capital of Newco being listed and quoted on the
Recognised Stock Exchange.
6.2 As the Call Option extends to and includes all stocks, shares and other securities held by the
Grantor in substitution of or exchange for the Sale Shares as contemplated in the definition of
Call Option Shares in Clause 1.1, the Parties agree that upon due completion of the Share
Swap Exercise, references in Clause 4 of this Agreement to the Company shall be
construed as references to Newco.
6.3 The Option Holder agrees that the Grantor shall be entitled to transfer the Call Option Shares
to Newco pursuant to the Share Swap Exercise.
7. CONFIDENTIALITY
The Parties covenant with each other that they will not make any public announcements in
respect of any transaction contemplated by this Agreement or of any terms and/or conditions
of this Agreement without the consent in writing of the other Party, such consent not to be
unreasonably withheld, except: (a) as may be required to be made pursuant to such laws and
regulations applicable to the Parties and/or the Company; or (b) where any information
pertaining to the transaction contemplated hereunder and/or the terms and conditions of this
Agreement should fall within the public domain otherwise than by reason of a Partys default.
8. REMEDIES
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each and every other remedy will be cumulative and will be in addition to every other remedy
given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The
election of any one or more of such remedies by any of the Parties will not constitute a waiver
by such Party of the right to pursue any other available remedies.
9. ASSIGNMENT
Neither Party will be entitled to assign or transfer any of its respective rights and/or obligations
hereunder without the prior written consent of the other Party.
10. SEVERANCE
Any term, condition, stipulation, provision, covenant or undertaking in this Agreement which is
illegal, void, prohibited or unenforceable will be ineffective to the extent of such illegality,
voidness, prohibition or unenforceability without invalidating the remaining provisions hereof, and
any such illegality, voidness, prohibition or unenforceability will not invalidate or render illegal,
void or unenforceable any other term, condition, stipulation, provision, covenant or undertaking
herein contained. Wherever legally possible any ineffective provisions will be deemed substituted
with such other provisions as would best fulfil the intentions of the Parties as expressed by the
provision deemed ineffective and which would have the closest economic effect to such provision
deemed ineffective.
No amendment or variation of this Agreement will be effective unless made in writing and
signed by and on behalf of each of the Parties.
Any liability to any Party may in whole or in part be released, compounded or compromised or
time or indulgence given by that Party in that Party's absolute discretion as regards the other
Party under such liability without in any way prejudicing or affecting the first Party's rights
against the other Party under the same or a like liability whether joint and several or
otherwise.
13.1 This Agreement is governed by and is to be construed in accordance with the laws of
Malaysia for the time being in force.
13.2 In relation to any legal action or proceedings arising out of or in connection with this
Agreement, the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the
courts of Malaysia.
14.1 The Option Holder will bear all costs and expenses incurred in the preparation, negotiation
and execution of this Agreement, including the Grantors solicitors costs and the stamp duty
payable on this Agreement.
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14.2 The Option Holder will bear all stamp duty and any other fees and charges payable in
connection with the sale and purchase and transfer of the Call Option Shares pursuant to this
Agreement.
All provisions of this Agreement will so far as they are capable of being performed or
observed, continue in full force and effect notwithstanding completion of the sale and
purchase of the Call Option Shares pursuant to the exercise of the Call Option, except in
respect of those matters then already performed.
Any time, date or period mentioned in any provision of this Agreement may be extended by
mutual agreement between the Parties, but as regards any time, date or period originally fixed
and not extended or any time, date or period so extended as aforesaid time is of the essence.
17. NOTICES
This Agreement is in substitution for all previous agreements (whether in writing or verbal)
between the Parties in respect of the subject matter of this Agreement and contains the whole
agreement between the Parties relating to the subject matter of this Agreement.
In the event that a Party shall have complied with all the terms and conditions herein contained
and the other Party shall have failed to comply with its duties and obligations under this
Agreement for any reasons whatsoever, the non-defaulting Party shall be entitled to claim for
specific performance against the defaulting Party and all costs and expenses incurred in
connection therewith (including solicitors' costs on a solicitor and client basis) shall be borne by
the defaulting Party.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first above
written.
Grantor
SIGNED BY )
[INSERT NAME] )
(NRIC No.: ) )
in the presence of:- )
.
Witness
Name:
NRIC No:
Option Holder
Witness
Name:
NRIC No:
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SCHEDULE 1
Part B : Grantor(s)
Name:
NRIC No.:
Address:
Shareholding in the Company : [] ordinary shares of RM [] each
Name:
NRIC No.:
Address:
Proposed shareholding in the Company : [] ordinary shares of RM [] each
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SCHEDULE 2
[Date]
[The Grantor]
[Address]
Dear Sir,
We refer to the Call Option Agreement (the Call Option Agreement) dated [***] made between you
as Grantor and us as Option Holder.
Unless otherwise defined herein, capitalised terms used in this letter shall have the meanings given to
them in the Call Option Agreement.
We hereby give you notice that we require you to sell to us (as the Option Holder), in accordance with
the terms and conditions of the Call Option Agreement, [insert number] Call Call Shares on [insert
date] at the Option Price of RM[insert amount], such purchase to be completed at 10.00AM on that
date.
We annex hereto for your reference the breakdown of the computation of the Option Price for the Call
Shares.
Yours faithfully,
For [Option Holder]
Name :
Designation:
(end of Schedule 2)
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SCHEDULE 3
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SCHEDULE 4
Option [fill in] [fill in] [fill in] [fill in] [fill in]
Holder
[fill in] [fill in] [fill in] [fill in] [fill in]
Grantor
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