SAFE_Cap_Discount(Singapore_Edition).txt

[Company Name Pte Ltd]


Agreement for Equity-Participation
("Agreement")

  THIS AGREEMENT DATED [Date of this Agreement] is made between [Investor Name] (the "Investor") and [Company Name Pte Ltd], a Singapore company (Company Registration No. [**] (the "Company"),

  IN CONSIDERATION OF the payment of US$[**] (the "Purchase Amount") by the Investor to the Company made on or about [Date of this Agreement], the Company hereby grants the Investor the rights to subscribe for certain shares in the capital of the Company and other benefits (and the Investor agrees to such rights), on the terms set forth below:

  The "Valuation Cap" is US$[**].
  The "Discount Rate" is [100 minus the discount]%.

  See Section 2 for certain additional defined terms.

  1. Events

  (a) Equity Financing. If there is an Equity Financing before the expiration or termination of this instrument, the Company will automatically issue to the Investor a number of shares of Safe Preferred Stock equal to the Purchase Amount divided by the Conversion Price.

  In connection with the issuance of Safe Preference Shares by the Company to the Investor pursuant to this Section 1(a):
    (i) The Investor will execute and deliver to the Company all transaction documents related to the Equity Financing; provided, that such documents are the same documents to be entered into with the purchasers of Standard Preference Shares, with appropriate variations for the Safe Preference Shares if applicable, and provided further, that such documents have customary exceptions to any drag-along applicable to the Investor, including, without limitation, limited representations and warranties (which shall only relate to the title to the Safe Preference Shares) and limited liability and indemnification obligations (which shall also only relate to the title to the Safe Preference Shares) on the part of the Investor; and
    (ii) The Investor and the Company will execute a Pro Rata Rights Agreement, unless the Investor is already included in such rights in the transaction documents related to the Equity Financing.

  (b) Liquidity Event. Upon the occurrence of a Liquidity Event, the Investor will elect (at his sole and absolute discretion and subject to notifying the Company in writing within fourteen (14) days of such date) to either (i) receive a cash payment equal to the Purchase Amount (subject to the following paragraph) or (ii) receive from the Company a number of Ordinary Shares equal to the Purchase Amount divided by the Liquidity Price. If the Company does not receive any written notification from the Investor of his election within the prescribed period, then the Investor shall be deemed to have elected to receive the Ordinary Shares as described at Section (b)(ii).

  In connection with Section (b)(i), the Purchase Amount will be due and payable by the Company to the Investor immediately prior to, or concurrent with, the consummation of the Liquidity Event. If there are not enough funds to pay the Investor and holders of other Safes (collectively, the "Cash-Out Investors") in full, then all of the Company’s available funds will be distributed with equal priority and pro rata among the Cash-Out Investors in proportion to their Purchase Amounts, and the Cash-Out Investors will automatically receive the number of Ordinary Shares equal to the remaining unpaid Purchase Amount divided by the Liquidity Price.

  (c) Dissolution Event. Upon the occurrence of a Dissolution Event, an amount equal to the Purchase Amount shall become due and payable to the Investor immediately prior to, or concurrent with, the consummation of the Dissolution Event. To the extent permitted by law, the Purchase Amount will be paid prior and in preference to any Distribution of any of the assets of the Company to its shareholders. If immediately prior to the consummation of the Dissolution Event, the assets of the Company legally available for distribution to the Investor and all holders of all other Safes (the "Dissolving Investors"), as determined in good faith by the Company’s board of directors, are insufficient to permit the payment to the Dissolving Investors of their respective Purchase Amounts, then the entire assets of the Company legally available for distribution will be distributed with equal priority and pro rata among the Dissolving Investors in proportion to the Purchase Amounts they would otherwise be entitled to receive pursuant to this Section 1(c).

  (d) Termination. This Agreement will terminate (without relieving the Company of any obligations arising from a prior breach of or non-compliance with this Agreement) upon either (i) the issuance of Shares to the Investor pursuant to Section 1(a) or Section 1(b)(ii); or (ii) the payment, of amounts due the Investor pursuant to Section 1(b)(i) or Section 1(c).

  2. Definitions

  "Shares" means the any and all class of shares in the capital of the Company, including, without limitation, the "Ordinary Shares", "Standard Preference Shares" and the "Safe Preference Shares".

  "Change of Control" means (i) a transaction or series of related transactions in which any "person" or "group", becomes the "beneficial owner", directly or indirectly, of more than 50% of the outstanding voting securities of the Company, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposal of all or substantially all of the assets of the Company.

  "Company Capitalization" means the sum, as of immediately prior to the Equity Financing, of: (1) all Shares (on an as-converted basis) issued and outstanding, assuming exercise or conversion of all outstanding vested and unvested options, warrants and other convertible securities, but excluding (A) this Agreement, (B) all other Safes, and (C) convertible promissory notes; and (2) all Ordinary Shares reserved and available for future grant under any equity incentive or similar plan of the Company, and/or any equity incentive or similar plan to be created or increased in connection with the Equity Financing.

  "Conversion Price" means the either: (1) the Safe Price or (2) the Discount Price, whichever calculation results in a greater number of shares of Safe Preferred Stock.

  "Discount Price" means the price per share of the Standard Preference Shares subscribed for during the Equity Financing multiplied by the Discount Rate.

  "Distribution" means the transfer to shareholders of the Company by reason of their ownership thereof of cash or other property without consideration whether by way of dividend or otherwise, other than share dividends, or the purchase or redemption of Shares by the Company or its subsidiaries for cash or property other than: (i) repurchases of Shares held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to an agreement providing, as applicable, a right of first refusal or a right to repurchase Shares upon termination of such service provider’s employment or services; or (ii) repurchases of Shares in connection with the settlement of disputes with any shareholder.

  "Dissolution Event" means (i) a voluntary termination of operations, (ii) a general assignment or compromise or scheme of arrangement for the benefit of the Company’s creditors or (iii) any other liquidation, dissolution or winding up of the Company (excluding a Liquidity Event), whether voluntary or involuntary.

  "Equity Financing" means a bona fide transaction or series of transactions with the principal purpose of raising first round of capital pursuant to which the Company issues and allots Standard Preference Shares to investor(s) at a fixed pre-money valuation.

  "Initial Public Offering" means the closing of the Company’s first firm commitment underwritten initial public offering of Ordinary Shares.

  "Liquidity Capitalization" means the number, as of immediately prior to the Liquidity Event, of Shares (on an as-converted basis) outstanding, assuming exercise or conversion of all outstanding vested and unvested options, warrants and other convertible securities, but excluding: (i) Ordinary Shares reserved and available for future grant under any equity incentive or similar plan; (ii) this Agreement; (iii) other Safes; and (iv) convertible promissory notes.

  "Liquidity Event" means a Change of Control or an Initial Public Offering.

  "Liquidity Price" means the price per share equal to the Valuation Cap divided by the Liquidity Capitalization.

  "Ordinary Shares" means ordinary shares in the capital of the Company.

  "Pro Rata Rights Agreement" means a written agreement between the Company and the Investor (and holders of other Safes, as appropriate) giving the Investor a right to purchase its pro rata share of private placements of securities or shares by the Company occurring after the Equity Financing, subject to customary exceptions. Pro rata for purposes of the Pro Rata Rights Agreement will be calculated based on the ratio of (1) the number of Shares owned by the Investor immediately prior to the issuance of the securities or shares to (2) the total number of Shares of the Company on a fully diluted basis, calculated as of immediately prior to the issuance of the securities or shares.

  "Safe" means an instrument or agreement setting out the right to subscribe for Shares in the Company, similar in form and content to this Agreement, and entered by investors for the purpose of funding the Company’s business operations.

  "Safe Preference Shares" means the preference shares issued to the Investor in an Equity Financing, having the identical rights, privileges, preferences and restrictions as the Standard Preference Shares, other than with respect to: (i) the per share liquidation preference and the conversion price for purposes of price-based anti-dilution protection, which will equal the Conversion Price; and (ii) the basis for any dividend rights, which will be based on the Conversion Price.

  "Safe Price" means the price per share equal to the Valuation Cap divided by the Company Capitalization.

  "Standard Preference Shares" means a series of preference shares issued to investor(s) investing new money in the Company in connection with the initial closing of the Equity Financing.

  "US$" refers to the currency of the United States of America.

  3. Company Representations and Warranties

  (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation, and has the power and authority to own, lease and operate its properties and carry on its business as now conducted.

  (b) The execution, delivery and performance by the Company of this Agreement is within the power of the Company and, other than with respect to the actions to be taken when equity or shares is to be issued to the Investor, has been duly authorized by all necessary actions on the part of the Company. This Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. To the knowledge of the Company, it is not in violation of (i) its current certificate of incorporation or its memorandum and articles of association, (ii) any material statute, rule or regulation applicable to the Company or (iii) any material indenture or contract to which the Company is a party or by which it is bound, where, in each case, such violation or default, individually, or together with all such violations or defaults, could reasonably be expected to have a material adverse effect on the Company.

  (c) The performance and consummation of the transactions contemplated by this Agreement do not and will not: (i) violate the any material judgment, statute, rule or regulation applicable to the Company; (ii) result in the acceleration of any material indenture or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Company or the suspension, forfeiture, or nonrenewal of any material permit, license or authorization applicable to the Company, its business or operations.

  (d) No consents or approvals are required in connection with the performance of this Agreement, other than: (i) the Company’s corporate approvals; (ii) any qualifications or filings under applicable securities laws; and (iii) necessary corporate approvals for the authorization of Shares issuable pursuant to Section 1.

  (e) To its knowledge, the Company owns or possesses (or can obtain on commercially reasonable terms) sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property rights necessary for its business as now conducted and as currently proposed to be conducted, without any conflict with, or infringement of the rights of, others.

  4. Investor Representations and Warranties

  (a) The Investor has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes valid and binding obligation of the Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

  (b) The Investor is entering this Agreement and the shares to be subscribed by the Investor hereunder for his own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. The Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing the Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time.

  5. Miscellaneous

  (a) Any provision of this Agreement may be amended, waived or modified only upon the written consent of the Company and the Investor.

  (b) Any notice required or permitted by this Agreement will be deemed sufficient when delivered personally or by overnight courier or sent by email to the relevant address listed on the signature page, or 48 hours after being deposited in the post office as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address listed on the signature page, as subsequently modified by written notice. Service of notices under this Agreement shall be made to the Investor or Company (as the case may be) at the addresses indicated on the signature page, or such other address as shall be notified by a party to the other in writing.

  (c) The Investor is not entitled to vote or receive dividends or be deemed a shareholder of the Company for any purpose, nor will anything contained herein be construed to confer on the Investor, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive subscription rights (save as provided in this Agreement) or otherwise until Shares have been issued to the Investor upon the terms described herein.

  (d) Neither this Agreement nor the rights contained herein may be assigned, by operation of law or otherwise, by either party without the prior written consent of the other; provided, however, that this Agreement and/or the rights contained herein may be assigned without the Company’s consent by the Investor to any other entity who directly or indirectly, controls, is controlled by or is under common control with the Investor, including, without limitation, any general partner, managing member, officer or director of the Investor, or any venture capital fund now or hereafter existing which is controlled by one or more general partners or managing members of, or shares the same management company with, the Investor; and provided, further, that the Company may assign this Agreement in whole, without the consent of the Investor, in connection with a reincorporation to change the Company’s domicile.

  (e) In the event any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Agreement operate or would prospectively operate to invalidate this Agreement, then and in any such event, such provision(s) only will be deemed null and void and will not affect any other provision of this Agreement and the remaining provisions of this Agreement will remain operative and in full force and effect and will not be affected, prejudiced, or disturbed thereby.

  (f) This Agreement will be governed by the laws of Singapore, without regard to the conflicts of law provisions of such jurisdiction, and the parties hereto submit to the non-exclusive jurisdiction of the Singapore courts.

  (g) The Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore shall not apply to this Agreement and no person who is not a party to this Agreement (whether or not such person shall be named, referred to, or otherwise identified, or form part of a class of persons so named, referred to or identified in this Agreement) shall have any right under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore to enforce this Agreement or to enjoy the benefit of any term of this Agreement.

  (h) This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts and each such counterpart shall, when executed and delivered, constitute an original of this Agreement but all of which when taken together shall constitute one and the same agreement, and any of the parties may execute this Agreement by signing any such counterpart.

(Signature page follows)





Signature page to Agreement for Equity-Participation ("Agreement")

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered on the date first above-written.

[Company Name Pte Ltd]
  By: [name]
      [title]
  Address:

  Email:

INVESTOR:
  By: [name]
      [title]
  Address:

  Email: