AGREEMENT FOR RECONSTRUCTION OF AN EXISTING COMPANY BY WAY OF SALE OF A NEW COMPANY
Date: - ________________
____________________________
And
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WHEREAS :
(1) By a special resolution of the old company passed at an extraordinary general meeting thereof held on the ______day of ___________it was resolved that the old company should be wound up voluntarily and that the liquidator should be appointed liquidator for the purposes of such winding up and that he should be authorized on behalf of the old company to enter into and carry out an agreement in the terms of a draft agreement which was produced to and approved by the said meeting, being the draft of this agreement.
(2) At separate general meetings of the holders of the preference and ordinary shares in the old company held on the __________ day of __________ the provisions of the said agreement and every variation of the rights attached to such shares proposed to be affected thereby or inherent therein were sanctioned. Or The holders of not less than three-fourths in nominal amount of the preference and ordinary shares in the old company have consented in writing to the provisions of the said agreement and to every variation of the rights attached to such shares proposed to be thereby affected or inherent therein. Or By an Order of the High Court at __________ pursuant to a scheme of arrangement between the old company and the holders of its preference shares and of its ordinary shares was sanctioned which provides inter alia for the execution of the said agreement.
(3) The new company has been incorporated under the Companies Act, 1956 and has a capital of Rs. _________ divided into ___________ [preference] shares of _________ each [and ordinary shares of _________ each] of which ___________ have been issued and are fully paid up.
(4) It is provided by clause (3) of the memorandum of association of the new company that one of the objects for which it was incorporated was to acquire the undertaking of the old company and for the purpose of executing and carrying out the agreement referred to in article of association of the new company (being this agreement). Or At an extraordinary general meeting of the new company held on the _________ day of _________ it was resolved that the capital of the company be increased with a view to the acquisition of the undertaking of the old company to its present amount of Rs. ________ by the creation of _________ shares of ________ each.
NOW IT IS HEREBY AGREED as follows:
- The old company shall sell and the new company shall purchase.
- all the letters patent rights privileges interests and property of or to which the old company is possessed or entitled (short particulars whereof are set out in the first schedule hereto) and also all other (if any) the letters patent rights privileges and interests of the old company in any invention or inventions whatsoever;
- all those the business premises demised by a lease (short particulars whereof are set out in the second schedule hereto) and the appurtenances thereto for the residue of the term and subject to the rent and covenants respectively granted reserved and contained by and in the said lease [and to the encumbrances affecting the same];
- all the plant machinery fixtures and apparatus implements tools articles matters effects and things belonging to the old company upon or belonging to the said business premises and used adapted or intended for the manufacture and business now carried on upon the said premises;
- all the goodwill of the business heretofore carried on by the old company at the said business premises or elsewhere and all the rights royalties claims privileges and appurtenances trademarks books of account credits contracts engagements claims vouchers papers articles matters and things of or belonging to or subsisting for the benefit of the old company in any way relating to the said manufacture and business and the full benefit and advantage of all inventions or improvements relating to the said manufacture and business (if any) belonging to the old company whether as patentees or licensees or otherwise howsoever;
- all the stock of iron coal material furniture stock in trade chattels and effects in or about the said business premises or elsewhere belonging to the old company and appertaining to the said manufacture and business;
- all other the property assets and effects whatsoever of the old company.
- Any conveyance or another instrument of transfer or assignment of the said premises to the new company shall be prepared and completed at its own expense and subject to clause 8 hereof at such time as the directors thereof shall determine. The new company shall accept without investigation such title to the premises as the old company possesses and the liquidator shall not be required to enter into any covenant other than a covenant that he has not encumbered.
- The new company shall as soon as convenient may issue to the liquidator or as he shall direct such shares in the new company as are referred to in clause 7 hereof of the nominal value of Rs. __________ each credited for all purposes as fully paid up.
- The new company shall be entitled to all debts and sums of money now due and owing or hereafter to become due and owing to the old company whether under any existing contract with the liquidator or the old company or otherwise in connection with the said manufacture and business and to all sums of money recovered or to be recovered as damages in any action now pending brought by the old company in respect of infringement of any patent rights or breach of contract for or any other matter or purpose connected with the said manufacture or business.
- The old company shall prosecute and carry on or abandon or compromise all or any such actions as aforesaid and do all such acts matters and things with reference thereto and with reference to the carrying out of any existing contract between the old company or the liquidator and any other person or persons and for getting in and recovering any outstanding debts as the new company shall reasonably require.
- The new company shall pay and discharge all debts and liabilities of the liquidator and of the old company including the costs and expenses of and incidental to winding up the old company and will indemnify the liquidator and the old company against all actions claims and demands whatsoever in respect of any debts costs claims liabilities acts matters or things due made done or omitted or to become due or to be made done or omitted by the liquidator or the old company in carrying on the business or under the provisions of this agreement or otherwise in respect of the premises including the costs and expenses aforesaid.
- The liquidator shall distribute among such of the members of the old company as do not dissent from the special resolutions hereinbefore recited fully paid-up shares in the new company to be issued as aforesaid to such extent and in such manner that for every fully paid-up Rs. ___________ [preference] share in the old company which each such member now holds he shall receive ________ fully paid-up [preference] Rs. _________ shares in the new company [and for every fully paid _________ ordinary share in the old company he shall receive fully paid ________ ordinary shares in the new company] but the new company shall not be bound to see to the proper application and distribution of the said fully paid-up shares nor be answerable for any misapplication or non-application thereof.
- The new company shall pay to the liquidator such sums as may be necessary to purchase the interest held by dissentient members as aforesaid in the old company and to cover all costs and expenses incurred by the liquidator or the old company in and about such dissent and until such sums have been paid or, secured to the liquidator the old company shall not be bound to convey or deliver over to the new company any of the premises.
- If the dissentient members shall hold more than ___________ shares in the old company the new company may within ___________ weeks from the date hereof rescind this agreement by notice in writing addressed to the liquidator and left at the registered office of the old company.
- The new company shall cause this agreement and any agreements constituting the titles of the respective allottees to the shares mentioned in clause 7 hereof to be filed with the Registrar of Companies pursuant to section 52 of the Companies Act, 1956.
FIRST SCHEDULE
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[Particulars of letters patent belonging to old company]
SECOND SCHEDULE
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[Particulars of lease of property to old company]
AS [IN] WITNESS etc.
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[Signature [and seal] of liquidator and seals or signatures on behalf of an old company in presence of liquidator and new company duly authenticated]
