(“THE COMPANY/ MANAGING DIRECTORS”)
(“THE INVESTORS/ SILENT PARTNERS”)
THIS AGREEMENT is made on the ……..…… day of…………..…………20……..…, entered into by the Company/Managing Directors and the Investor(s) /Silent partner(s) (Company/Managing Directors and Investor(s) collectively referred to herein as the “Parties” or individually as the “Party”).
The Company/Managing Directors now wish to enter into this Agreement with the Investor(s) wherein the Investor(s) will acquire shares in the Company in line with their capital investment.
THEREFORE, in consideration of mutual promises, representations, covenants, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree to the following terms and conditions and to be bound thereby:
- DEFINITIONS AND INTERPRETATIONS
- In this Agreement:
- “Agreement” means this Agreement, its Schedules, Exhibits, and other documents (save as may otherwise be varied by this Agreement);;
- “Intellectual Property” means the copyright, know-how, the trade names, and any marks, trade device, service mark, symbol, code or specification, patents, designs, and other individual or intellectual property rights used in or associated with any of the Parties;
- “Managing Directors” meansindividualsdesignated as the express managers of the Company in charge of its day-to-day operations. The Managing Directors of the Company shall be Mr. Yohai Harrus and Mr. Carlos Rodriguez;and
- “Investor/ Silent Partner” means individuals whose involvement in the Company is limited to the provision of capital in exchange for a return on their investment.
- In this Agreement, unless the context otherwise requires, any reference to:
- the singular includes the plural and vice versa;
- any written law consists of that law as amended or re-enacted from time to time;
- any agreement or other document includes that agreement or other form as varied or replaced by the Parties in writing from time to time;
- a clause is to the relevant clause of this Agreement;
- any Party includes that party’s successors and assigns.
- Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
- Where the Agreement provides for the giving or issue of any notice, consent, approval certificate, or determination, it shall be in writing, and the words notify, certify or determine shall be construed accordingly. Parties may conduct routine communications relating to the performance of this Agreement by electronic mail.
This Agreement shall be valid from the date of execution until termination.
- PURPOSE OF THE AGREEMENT
The Purpose of this Agreement is to set out the terms and conditions for capital contribution, management, assessment and distribution of dividends, disposition of shares, distribution of assets in liquidation for the Company (_______Name of the Company_______) whose business shall be provision of Hotel services in Mexico, Quintana Roo, Tulum and any other locations the Company may decide to expand to in future.
- SHARES SUBJECT TO AGREEMENT
The total number of shares in the Company shall be __________ shares.
The Investor(s) listed at the time of this Agreement, now own the shares indicated of common stock. Percentages are estimated, and the Number of Shares is the controlling figure.
|Name||Number of Shares||Representative Percentage|
|1. Yohai Harrus (Managing Director)||____________||15%|
|2. Carlos Rodriguez (Managing Director)||____________||5%|
5.1. Yohai Harrus and Carlos Rodriguez shall be the Managing Directors of the Company. This SHALL NOT be an elective position during the life of the Company.
5.2. The aforementioned Managing Directors shall control all actions, income, expenses, and sales of the Company through the Hotel Management System (HMS).
- DUTIES OF THE PARTIES
The Managing Directors
6.1. Completion of any necessary due diligence in respect of the Company;
6.2. Preparation of the necessary general and financial reports at least once every year; they shall however retain the discretion to prepare said reports more than the minimum once a year whenever they deem it necessary. Such reports will be used to identify profits and dividends.
6.3. Maintain accounting to the best of their ability of the Current Assets of the Company, as required by statute.
6.4. File Articles of the Incorporation as required by statute, and any other certificates, acts, or orders as required;
6.5. Enforce the maintenance of records, books, and documents as required by statute;
6.6. Enforce that the Company is operated within the bounds of sound business practice.
6.7. Obtaining any required tax clearances; and
6.8. Communicating on behalf of the Company.
6.9. To pay the subscription monies to the Company’s bank account;
6.10. To pay the down payment to the escrow bank account for land purchase.
6.11. To have complete confidence in the Managing Directors’ ability to grow the business.
6.12. Liability for any losses up to their invested capital amount
- RIGHTS OF THE PARTIES
The Managing Directors
7.1. Right to make top managerial decisions;
7.2. Right to lead the development and execution of long-term strategies with the goal of increasing shareholder value.
7.3. Limited liability. The Investors will not be liable for company losses beyond the percentages they have invested.
7.4. The Investors and their families will enjoy free stays at the hotel with their friends, enjoying similar benefits depending on room availability
- DIVIDENDS, DISTRIBUTIONS OF PROFITS AND LOSSES
8.1. Profits and losses of the Company will be determined by independently determined rules of accounting and will be determined on a fiscal year basis.
8.2. The Company shall retain a portion of its income. This “Retained Revenue” sum of _________[percent], or _____________________[amount], whichever is higher will not be included into amounts distributed as Dividend. Additional Discretionary Retained Revenue may be added, as needed, with the approval of the Board of Directors, for the purposes of the following non-limiting items: conducting business and maintaining development, normal operations, or expansion of the business.
8.3. After subtracting the Retained Revenue and Additional Discretionary Retained Revenue from the Gross Revenue, the Company should subtract any earnings required by law, including but not limited to Taxes, Expenses, Depreciation, Interest, and Depreciation, resulting in a net income amount. The Net Income may be distributed to Investor(s) every financial quarter. The amount received will be proportional to the Number of Shares owned.
9.1. All Investor(s) must agree unanimously to voluntarily dissolve the Company.
9.2. In the case of voluntary or involuntary dissolution, at the beginning of proceedings, all business operations will cease. The only exception to this clause is for operations which must continue for the purposes of the dissolution proceedings.
9.3. During the Dissolution Proceedings, the Managing Directors shall:
- Manage the business as necessary to complete the dissolution proceedings.
- Complete, Pay, Collect, and settle any debts or credits against the Company, including any litigation processes ongoing.
- Sell or otherwise convert all assets of the Company for Cash.
- Make any Contracts necessary in the name of the Company regarding dissolution proceedings.
- Employ agents or entities with power of attorney(s) to complete the above tasks.
9.4. The Managing Directors shall apply any moneys, during dissolution proceedings, in the following order:
- To liabilities or debts of the Company, expenses of dissolution, and in accordance with the law.
- To Profits, undistributed.
- To Repayment of the purchase of shares, by original amounts of consideration paid by Investor(s).
- To the Investor(s) as a proportion to the number of shared owned.
- TRANSFERING SHARES
10.1. Any transfer or sale of shares by an investor to the public shall only be done with the consent of all the investors. Any transfer that does not comply with this requirement shall be void.
10.2. Current investors shall have first priority in purchasing any undistributed shares within the Company.
10.2. Investor(s) can sell any shares to the Company without requiring the consent of the other investors.
10.3. In the event the Company buys shares from an investor, the remaining investors will have first priority of purchasing the sold shares.
10.4. In the event of death of an investor, the Company agrees to buy their shares at fair market prices, after which the moneys will be paid to the deceased’s investor’s estate.
The Investor shall not interfere with the Company’s relationship with, or endeavor to entice away from the Company, the Company’s clients or any person who had a material business relationship with the Company in the duration of this Agreement.
The Investor shall not directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or consultant to any other corporation or enterprise; engage in the businesses in which the Company engages in or in which the Company has an actual intention, as evidenced by the Company’s written business plans, to engage in, within any geographic area in which the Company is then conducting such business for a period of two (2) years after termination of this Agreement.
The investors shall not sell or assign their shares within 3 years of subscribing to the Company.
- INTELLECTUAL PROPERTY
The Investors agrees that any ideas, concepts, discoveries, techniques, patents, copyrights, or trademarks relating to the Company or operations of the Company and its Related Entities which are developed or discovered by the Investors, solely or jointly with others, during the subsistence of this Agreement, shall be deemed to have been made within the scope of this Agreement and therefore constitute works for hire and shall automatically upon their creation or discovery become the exclusive property of the Company.
- DISPUTE RESOLUTION
If any dispute arises between the Parties related to this Agreement, it shall be resolved by mediation. Parties shall act in good faith to resolve the dispute. Nothing in this section shall be construed as limiting the relevant jurisdiction of the Courts.
- VARIATION to the agreement
Either party may request variations to the Agreement. The Parties shall enter into discussions to agree on any required changes, revised pricing, and time for performance. Such variations will only be effective if agreed in writing, signed by the Parties, and recorded.
- Force Majeure
- For this Agreement, “Force Majeure” means an event which a diligent party could not have reasonably avoided in the circumstances, which is beyond the reasonable control of a party and which makes a party’s performance of its responsibilities hereunder impossible or so impractical as reasonably to be considered impossible in the circumstances and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.
- Force Majeure shall not include any event caused by the negligence or intentional action of a Party or such Party’s sub-Investors or agents or employees or by a failure to observe good professional practice.
- Force Majeure shall not include insufficiency of funds or failure to make any payment required hereunder.
- The failure of a Party to fulfill any of its obligations hereunder shall not be considered to be a breach of or default under this Agreement insofar as such inability arises from an event of Force Majeure, provided that the party affected by such an event has taken all reasonable precautions, due care, and reasonable alternative measures, all to carry out the terms of this Agreement.
- A Party affected by an event of Force Majeure shall take all reasonable measures to remove such party’s inability to fulfill its obligations hereunder with a minimum of delay. The Parties shall take all appropriate measures to minimize the consequence of any event of Force Majeure.
- A Party affected by an event of Force Majeure shall notify in writing the other party of such event as soon as possible, and in any event not later than five (5) days following the occurrence of such event, providing evidence of the nature and cause of such event, and shall similarly give notice of the restoration of normal conditions as soon as possible.
- Not later than fourteen (14) days after a Party, as a result of an event of Force Majeure, has become unable to discharge a material portion of its obligations, the Parties shall consult with each other to agree on appropriate measures to be taken in the circumstances.
The Investors shall not at any time disclose, directly or indirectly to any other person whatsoever (including to the public or any section of the public) any information concerning this Agreement or any additional information of any nature whatsoever concerning the Company, whether such information or matter is stated to be confidential or not, without the express written permission of the Company.
- NO WAIVER
Except where this Agreement provides otherwise, the rights and remedies contained in it are cumulative and not exclusive to rights or remedies provided by law. The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or the right at any time subsequently to enforce all terms and conditions of this Agreement.
Suppose any provision of this Agreement is declared by any judicial or other competent body to be void, voidable, illegal, or otherwise unenforceable. In that case, the Parties shall amend that provision in such a reasonable manner as achieves the Parties’ intention without illegality or at the parties’ discretion, it may be severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect.
The Parties select as their respective addresses the addresses (including email) set out below for all purposes arising out of or in connection with this Agreement at which addresses only all processes and notices arising out of or in connection with this Agreement may validly be served upon or delivered by the Parties.
THE COMPANY: ___________________________________________
(MANAGING DIRECTORS) ___________________________________________
THE INVESTOR(S): ___________________________________________
- CHANGE OF ADDRESS
Either party may provide changes in the above addressees by reasonable notice in writing given to the other party as aforesaid.
Each party shall bear its costs incurred in the negotiation, preparation, and execution of this Agreement.
- GOVERNING LAW
The construction, validity, and performance of this Agreement shall be governed in all respects by the Laws of Mexico.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement, both Parties by its duly authorized officer, as of the day and year set forth below.
|Signed by the duly authorized representative of the COMPANY Signature: ………………………………………………. Name: …………………………………………………… Designation: ……………………………………………. Date:……………………………………… Signature: ………………………………………………. Name: …………………………………………………… Designation: ……………………………………………. Date:………………………………………||Signed by the INVESTORS Signature: ………………………………………………. Name: …………………………………………………… Designation: ……………………………………………. Date:…………………………………………….……………|
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