Share holders agreement
TERMS OF SHAREHOLDING: NON-VOTING SHARES
(A) The Gibbs Syndicate Limited (Company) is a private company limited by shares incorporated and registered in England and Wales with company number 12261996 whose registered office is at 8 Main Street, Bilton, Rugby, United Kingdom, CV22 7NB.
(B) The Shareholders have agreed to enter into this agreement for the purpose of regulating the exercise of their rights in relation to the Company and for the purpose of certain commitments set out in this agreement.
(C) The Company intends to purchase, compete and take semen from a four year old stallion Cornets Pleasure WW (the Horse).
(D) The Company has issued 150 shares ordinary non-voting shares in the Company. Shareholders of the Shares will be referred to as Owners in this Agreement.
1.1 The following definitions shall apply in this agreement:
Articles: the articles of association of the Company as amended or superseded from time to time.
Breeding Costs shall mean all costs associated with taking semen from the Horse (including testing and storing that semen), marketing the semen for sale and selling the semen (including but not limited to administrative costs, duties and any claims demands of complaints in relation to the Horse’s semen).
Breeding Income shall mean the income generated by selling the Horse’s semen.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Company Expenditure shall mean all costs, expenses and liabilities associated with carrying on the business of the Company, including but not limited to the purchase price of the Horse, livery charges, training fees, groom fees, rider fees, tack and rugs, feed and supplement costs, entry fees, veterinary fees, dentistry fees, physiotherapy fees, farrier fees, competition expenses, purchase and sale expenses, travelling charges, directors’ reasonable remuneration and expenses, rider commissions, insurance premiums and excess payments, legal, accountancy and other professional fees, bank charges, interest payments, costs of establishing and winding up the Company and any other like expenses. For the avoidance of doubt, this shall not include any costs which have been determined by the Directors to be an Exceptional Cost.
Company Income shall mean monies paid by the Owners in respect of their shares, prize money won by the Horse, any Breeding Income which has not been distributed by way of Annual Breeding Dividend (save that such income will be subject to a deduction of applicable Breeding Costs) and any funds raise by selling the Horse.
Credible Offer shall mean an offer to purchase the Horse, which, at the sole discretion of the Directors and their advisors, constitutes an offer on reasonable terms, considering the current health and performance of the Horse and the prevailing market conditions.
Directors shall mean Jane Sarah Peacocke and Vincent Humphrey Peacocke, or such other individuals who may be from time to time appointed as a director of the Company.
Exceptional Cost shall mean any unforeseen cost (to be determined at the sole discretion of the Directors) relating to treatment required to the Horse from any veterinary surgeon, physiotherapist, farrier, or any legal or administrative costs arising in relation to dealing with any regulatory or legal claim, challenge, appeal or action in relation to the Horse or his rider.
Semen shall mean any semen taken from the Horse during the Company’s ownership of him.
1.1 A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 A reference to a statute or statutory provision shall include all subordinate legislation made that statute or statutory provision.
1.4 A reference to writing or written includes faxes but not email unless otherwise expressly provided in this agreement.
1.5 Any words following the terms including, include, in particular or for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- BUSINESS OF THE COMPANY
2.1 The business of the Company is the syndication, training and promotion of a show jumping stallion (Business).
- MANAGEMENT OF THE HORSE
3.1 The Owners recognise and accept that their shares are non-voting shares, and that they shall not be entitled to exercise any voting rights in relation to the management of the Company.
3.2 It shall be for the Directors, at their sole discretion, to make all decisions in relation to the management, sale, care, training, veterinary treatment (including euthanasia), therapy and competition of the Horse and the Semen.
3.3 No Owner shall have any claim against the Directors, the Company or against any other Owner in respect of any loss, illness or injury sustained by the Horse or the Semen, howsoever caused (including death of the Horse) nor shall any Owner have any claim for indirect damages or losses of any kind, including loss of profit or other consequential loss.
3.4 The Directors will endeavour, on behalf of the Owners, to procure a policy of insurance in respect of the Horse in order to provide coverage for mortality and loss of breeding use only. Owners accept that a policy of insurance for the Horse may be prohibitively expensive to procure, and in those circumstances, understand that the Horse will be uninsured.
3.5 The Horse will be trained, ridden and liveried by the person or persons appointed or employed by the Directors for that purpose.
- DIVIDENDS AND INTERIM INCOME
4.1 The Directors will market the Horse for stud in the 2020 season. The Directors will aim to sell approximately 50 coverings to the Horse in the 2020 season (and subsequent seasons).
4.2 The Directors will endeavour to declare a dividend at the end of each annual breeding season in relation to the Horse’s Breeding Income (the Annual Breeding Dividend).
4.3 The Annual Breeding Dividend shall be calculated by subtracting the Breeding Costs from the Breeding Income.
4.4 Any other income generated by the Horse (save for the sale of the Horse) including prize money and sponsorship shall not be distributed by way of an interim dividend and shall be deemed as ordinary operating income for the Company, or, at the sole discretion of the Director, to reward the rider of the Horse for performance.
- EXCEPTIONAL COSTS OF THE COMPANY
5.1 In the event that the Company incurs an Exceptional Cost, the Owners agree that they shall each contribute a sum capped at £100.00 per share to enable the Company to meet the Exceptional Cost.
5.2 If the Company incurs an Exceptional Cost, the Directors shall send notice of that Exceptional Cost to the Owners, detailing the nature of the cost and the amount required for contribution by the Owner. The Owner shall send to the Directors payment by way of a cheque payable to the Company, or by bank transfer, within 14 days of the date of the Exceptional Cost Notice.
5.3 The maximum sum which an Owner will be required to contribute by way of Exceptional Cost per share shall be £200.00 per calendar year.
- SALE OF THE HORSE
6.1 The Owners understand that the Horse will, at any time, be available for purchase, if a Credible Offer is made to purchase him.
6.2 It shall be for the Directors, at their sole discretion (and in consultation with their advisors) to determine whether a Credible Offer should be accepted.
6.3 If a Credible Offer is accepted, and a sale of the Horse is completed, the Directors will arrange for an account to be prepared, detailing the Company’s Income and the Company’s Expenditure. The Owners shall receive a sum representing the Company’s Income less the Company’s Expenditure to be distributed rateably according to the number of shares held by each Owner.
6.4 If, following the sale of the Horse, all of the Semen has not been sold, the Directors will market for sale the Semen. When all of the Semen is sold, there shall be a final account and any Breeding Income (less Breeding Expenses) shall be distributed (either annually, or on the sale of the last of the Semen) rateably according to the number of shares held by each Owner.
6.5 For the avoidance of any doubt, the Directors shall not be obliged to procure a sale of the Horse at any time and for any sum.
6.6 Following the sale of the Horse, or the Semen (whichever comes later) and the distribution of sums due to the Owners, the Company will be wound up. The Owners agree that they will, upon request by the Directors, provide all relevant consents to effect the winding up of the Company.
- UPDATES AND COMPETITIONS
7.1 The Directors shall endeavour to send the Owners a monthly e-mail detailing news of the Horse’s training and competition during the last month. The Directors will endeavour to provide, where possible, details of future competitions where the Horse will compete. However, Owners understand that such a schedule may be liable to change at short notice, and Directors may not be able to communicate any late changes to the schedule to Owners.
7.2 It is anticipated that there will be an open day for Owners in the Autumn of 2020, when Owners will be able to attend the premises where the Horse is being kept. Owners will be notified in advance of the open day and will be asked to indicate if they wish to attend.
7.3 If any Owner wishes to attend a competition where tickets are only available to competitors, or where discounted tickets are available to competitors, they shall notify the Directors by e-mail and the Directors shall endeavour to obtain tickets for the Owner. The Owner understands that due to restraints on ticketing numbers, the Directors may not be able to facilitate such a request. Owners are encouraged to make any request as early as they can, and in any event, within 7 days of an event, to maximise the chance of them receiving a ticket.
- TRANSFER OF SHARES
8.1 No Owner shall sell, transfer, assign, pledge, charge or otherwise dispose of any share or any interest in any share, except as permitted by this agreement.
8.2 An Owner (Seller) wishing to transfer Shares (Sale Shares) shall give notice in writing (Transfer Notice) to the Directors specifying the details of the proposed transfer, including the number of Sale Shares comprised within the Transfer Notice, the identity of the proposed buyer(s) (if any), the proposed price for each Sale Share (Proposed Sale Price).
8.3 On receipt of the Transfer Notice, the Directors shall be entitled, but shall not be obliged, to offer the Sale Shares to other existing Owners.
8.4 If any of the existing Owners wish to purchase the Sale Shares, they shall give notice in writing (Price Notice) to the Seller at any time within 10 Business Days of receipt of a Transfer Notice, that the Proposed Sale Price is either acceptable to them, or is too high.
8.5 Following service of a Price Notice, if the price is not agreed, the parties shall endeavour to agree a price for each of the Sale Shares. If the parties have not agreed such a price within 10 Business Days of the Seller’s receipt of a Price Notice, the Seller shall be entitled to offer his or her Sale Shares on the open market, save that the Seller may not sell his or her shares to any individual if the result of that transaction would mean that the buyer of the Sale Shares would hold more than 25 shares in the Company.
8.6 Upon completion of the sale of the Sale Shares the Seller shall deliver, or procure that there is delivered to each Sale Share buyer, a duly completed stock transfer form transferring the legal and beneficial ownership of the relevant Sale Shares to him or her, together with the relevant share certificate(s) (or an indemnity in lieu thereof) and such other documents as the Share Sale buyer may reasonably require to show good title to the Shares, or to enable him or her to be registered as the holder of the Shares.
8.7 Upon completion of any Sale Share the Seller shall automatically cease to be a party to this agreement, but without prejudice to any obligations of the Seller which accrued before such cessation including in respect of any prior breach of this agreement.
- COMPULSORY TRANSFERS
9.1 An Owner is deemed to have served a Transfer Notice under Clause 8.2 immediately before any of the following events:
(a) his or her death; or
(b) an order being made for the Owner’s bankruptcy or an arrangement being made with his or her creditors, or where he or she otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; or
(c) he or she fails to remedy a material breach by him or her of any obligation under this agreement (including the obligation to make a payment for an Exceptional Cost) within 10 Business Days of notice to remedy the breach being served by the Directors.
10.1 This agreement shall terminate when a resolution is passed by the shareholders or creditors of the Company, or an order is made by a court or other competent body or person instituting a process that shall lead to the Company being wound up and its assets being distributed among the Company’s creditors, shareholders or other contributors; or
10.2 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of any of the parties that have accrued up to the date of termination, including the right to claims damages in respect of any breach of the agreement which existed at or before the date of completion.
- NO PARTNERSHIP OR AGENCY
11.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties or constitute any party the agent of another party.
12.1 A notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery in each case to that party’s address as notified on the attached application for share form (or to such other address as that party may notify to the other party in accordance with this agreement).
12.2 A party may change his details for service of notices by giving notice to the other parties, provided that the address for service is an address in the United Kingdom following the change. Any change notified shall take effect at 9.00 am on the later of the date (if any) specified in the notice as the effective date for the change or 5 Business Days after deemed receipt of the notice.
12.3 Delivery of a notice is deemed to have taken place if delivered by hand, at the time the notice is left at the address, or if sent by post on the 2nd Business Day after posting unless, in each case, such deemed receipt would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur at 9.00 am on the day when business next starts in the place of deemed receipt.
13.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- VARIATION AND WAIVER
14.1 No variation of this agreement shall be effective unless it is in writing and signed by or on behalf of each party for the time being.
14.2 A waiver of any right or remedy under this agreement or by law is only effective if it is given in writing and is signed by the party waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.
14.3 A failure or delay by any party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
14.4 No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 A party that waives a right or remedy provided under this agreement or by law in relation to one person, or takes or fails to take any action against that person, does not affect its rights or remedies in relation to any other person.
- COSTS AND EXPENSES
15.1 Except as expressly provided in this agreement, each party shall pay his own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this agreement (and any documents referred to in it).
- ENTIRE AGREEMENT
16.1 This agreement (together with the documents referred to in it) constitute the entire agreement between the parties and supersede and extinguish all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations, arrangements and understandings between them, whether written or oral, relating to their subject matter.
16.2 Each party acknowledges that in entering into this agreement (and any documents referred to in it), he does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement or those documents.
16.3 Nothing in this clause shall limit or exclude any liability for fraud.
- THIRD PARTY RIGHTS
17.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- GOVERNING LAW AND JURISDICTION
19.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).