Sparke Helmore Lawyers - Subscription Agreement lyrics

Subscription Agreement in relation to [insert] Pty Ltd Contents Parties 4 Background 4 Operative part 4 1 Definitions 4 2 Interpretation 6 2.1 General interpretation 6 2.2 Knowledge 7 3 Subscription 7 4 Completion 7 4.1 Time and place for Completion 7 4.2 Completion obligations of Investor 7 4.3 Completion obligations of Company 8 4.4 Simultaneous Completion Obligations 8 4.5 Failure to Complete 8 5 Warranties 8 5.1 Warranties by the Warrantors 8 5.2 Disclosures 8 5.3 Time limitation 9 5.4 Maximum aggregate liability for Claims 9 5.5 Investor warranties 9 6 Default and termination 9 6.1 Termination 9 6.2 Effect of termination 9 7 Confidentiality 9 7.1 Confidentiality 9 7.2 Permitted disclosure 9 8 GST 10 8.1 Recovery of GST 10 8.2 Liability net of GST 10 8.3 Adjustment events 10 8.4 Definitions 10 9 General 10 9.1 Notices 10 9.2 Costs and expenses 11 9.3 Stamp duty 11 9.4 Governing law 11 9.5 Jurisdiction 11 9.6 Cumulative rights 11 9.7 Severability 12 9.8 Further a**urances 12 9.9 Assignment 12 9.10 Survival and merger 12 9.11 Entire agreement 12 Schedule 1 Subscription Details 13 Schedule 2 Post Completion Issued Capital Structure 14 Schedule 3 Warranties 15 Schedule 4 Investor Warranties 17 Schedule 5 Seed Preference Share Terms 18 Signing page 21 Agreement Date Parties Name [insert] Pty Ltd (Company) ACN [insert] Name The party set out in Part A of Schedule 1 (Investor) Name The party set out in Part B of Schedule 1 (Founder) Background A. The Investor wishes to subscribe for, and the Company wishes to issue, the Subscription Shares for the Subscription Moneys, on the terms set out in this agreement. Operative part In this agreement: 1 Definitions In this agreement: Accounts means the balance sheet of the Group and the profit and loss statement and cash flow statement of the Group at the Accounts Date. Accounts Date means [insert]. Business: means the business of the Group as at the date of this agreement being [insert description of business] and as modified from time to time. Business Day: means a day on which banks are open for general banking business in [Sydney], excluding Saturdays, Sundays and public holidays. Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at Law, in equity, under statute or otherwise. Completion means completion of the issue and allotment of the Subscription Shares in accordance with this agreement. Completion Date means [insert]. Confidential Information means information disclosed by or on behalf of one party to another party in connection with this agreement which has been designated as confidential by the party disclosing the information, or information which by its nature should reasonably be considered to be confidential, but does not include: (a) any information which is in the public domain at the time of its disclosure or subsequently becomes part of the public domain other than as a result of a breach by the person receiving the Confidential Information of clause 7.1; (b) any information that was known to the party receiving the Confidential Information at the time of disclosure of the confidential information except as a result of a prior confidential disclosure by the party disclosing the Confidential Information; or (c) any information that is disclosed to the party receiving the Confidential Information by any third party who is not known to the party receiving the Confidential Information to be acting in breach of a confidentiality obligation owed to the party disclosing the Confidential Information. Continuing Clauses means this clause 1 and clauses 2 (Interpretation), 7 (Confidentiality), 8 (GST) and 9 (General). Corporations Act means the Corporations Act 2001 (Cth) as amended. Duty means any stamp, transaction or registration duty or similar charge imposed by any Government Agency and includes any interest, fine, penalty, charge or other amount imposed in respect of them but excludes any Tax. Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local. Group means the Company and its Subsidiaries and Group Company means any one of them. Intellectual Property Rights means all present and future rights to: (a) trade marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how); and (b) where the rights referred to in paragraph (a) are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such applications. Investor Warranties means the representations and warranties set out in Schedule 4. Law includes: (a) any statute, regulation, rule, by-law, ordinance, proclamation, judgement, treaty, decree, convention, rule or principle of common law or equity, rule of any applicable stock exchange, or requirement or approval (including any Government Agency); (b) any regulation, rule, by-law, ordinance, proclamation or judgement made under that law; and (c) that law as amended, consolidated, supplemented, re-enacted or replaced. PPSA means the Personal Property Securities Act 2009 (Cth). Related Body Corporate has the meaning as set out in the Corporations Act. Representative in respect of a person means an officer, employee, auditor, banker or professional adviser of that person. Security Interest means: (a) a 'security interest' as defined in the PPSA; (b) any third party rights or interests including a mortgage, lien, charge, pledge, a**ignment by way of security, security interest, encumbrance, title retention, preferential right or trust arrangement, Claim, covenant, easement or any other security arrangement or any other arrangement having the same effect; (c) a right, interest or arrangement which has the effect of giving another person priority over creditors including any right of set-off; (d) a right that a person (other than the owner) has to remove something from land (known as a profit à pendre), easement, public right of way, restrictive or positive covenant, lease, or licence to use or occupy; or (e) an agreement to create any of them or allow them to exist. Seed Preference Shares means [insert] convertible preference shares on the terms set out in the Seed Preference Share Terms. Seed Preference Share Terms means the terms set out in Schedule 5. Share means a fully paid ordinary or Seed Preference Share in the capital of the Company. Shareholders Agreement means the shareholders agreement between the Company and its shareholders which will be entered into at Completion. Subscription Shares means, in respect of the Investor, the Seed Preference Shares which that Investor is subscribing for, as set out in Schedule 1. Subscription Moneys means that sum of money for the Subscription Shares calculated by multiplying the number of Subscription Shares by the Subscription Price, as set out in Schedule 1. Subscription Price means the Subscription Price for each Subscription Share as set out in Schedule 1. Subsidiary means a subsidiary as defined by section 9 of the Corporations Act. Tax means any tax, levy, charge, impost, fee, deduction, GST or withholding tax that is a**essed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of, any of the above but excludes Duty. Warranties mean the representations and warranties set out in Schedule 3. Warrantors means the Founder and the Company. 2 Interpretation 2.1 General interpretation In this agreement, unless context indicates a contrary intention: (a) (headings) clause headings and the table of contents are inserted for convenience only and do not affect interpretation of this agreement. (b) (party) a reference to a party to a document includes that party's personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted a**igns. (c) (including) including and includes (and any other similar expressions) are not words of limitation, and a list of examples is not limited to those items or to items of a similar kind. (d) (corresponding meanings) a word that is derived from a defined word has a corresponding meaning. (e) (singular) the singular includes the plural and vice-versa. (f) (gender) words importing one gender include all other genders. (g) (rules of construction) neither this agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting. (h) (legislation) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it. (i) (time and date) a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in [insert], Australia, even if the obligation is to be performed elsewhere. (j) (writing) a reference to a notice, consent, request, approval or other communication under this agreement or an agreement between the parties means a written notice, request, consent, approval or agreement. (k) (Australian currency) a reference to dollars or $ is to Australian currency. 2.2 Knowledge A reference in this agreement to the Warrantors' awareness, knowledge, information or belief is a reference to the actual awareness, knowledge or belief of each Warrantor and each Group Company and the awareness, knowledge or belief they would have had after making due and careful enquiry. 3 Subscription On Completion, the Company must issue and the Investor must subscribe for the Subscription Shares at the Subscription Price. 4 Completion 4.1 Time and place for Completion Completion must take place on the Completion Date or at another time and date agreed between the parties, at [insert], unless otherwise agreed in writing between the parties. 4.2 Completion obligations of Investor On the Completion Date, the Investor must: (a) pay the Subscription Moneys to the Company; and (b) deliver to the Company the Shareholders Agreement duly executed by it. 4.3 Completion obligations of Company On the Completion Date, the Company must: (a) procure that a meeting of its directors is held at which it is unanimously resolved that, subject to receipt by the Company of the Subscription Moneys for the Subscription Shares: (i) the Company issues to the Investor the Subscription Shares free from any Security Interests, by entering the name of the Investor in the Company's register of members as the holder of the Subscription Shares; and (ii) the Company issues a share certificate to the Investor for the Subscription Shares; (b) issue the Subscription Shares and a share certificate for the Subscription Shares to the Investor; (c) enter the Investor in its register of members as the holder of the Subscription Shares; (a) deliver to the Investor the Shareholders Agreement duly executed by all parties to it (other than the Investor); and (a) deliver to the Investor a copy of an a**ignment deed between the Company and the Founder pursuant to which the Founder a**igns to the Company all of the Intellectual Property Rights related to the Business that he owns, in a form acceptable to the Investor. 4.4 Simultaneous Completion Obligations All actions required to be performed by the parties on the Completion Date are interdependent and are taken to have occurred simultaneously on the Completion Date. 4.5 Failure to Complete Completion will not occur unless all of the obligations of the Company and the Investor at Completion are satisfied. If Completion does not occur, then either party may elect to terminate this agreement. 5 Warranties 5.1 Warranties by the Warrantors (a) Each Warrantor jointly and severally represents and warrants to the Investor that each Warranty is true and correct and not misleading on the date of this agreement and at the Completion Date. (b) Each Warrantor acknowledges that the Investor has entered into this agreement in reliance on the Warranties. (c) Each Warranty must be construed independently and is not limited by reference to another Warranty. 5.2 Disclosures The Warrantors are not liable to pay for any breach of any Warranty if the breach is based on any fact, matter or circumstance that is fully and fairly disclosed in writing. 5.3 Time limitation The Warrantors have no liability relating to or arising out of a breach of a Warranty unless the Investor has given written notice of the Claim relating to or arising out of the breach to each Warrantor within 24 months after the Completion Date. 5.4 Maximum aggregate liability for Claims The maximum aggregate liability of the Warrantors as a result of all Claims made by the Investor in relation to a breach of a Warranty under this agreement or otherwise, is an amount equal to the Subscription Moneys plus the Investor's total legal fees. 5.5 Investor warranties (a) The Investor severally represents and warrants to the Company that the Investor Warranties are true on the date of this agreement and at the Completion Date. (b) The Investor acknowledges that the Company has entered into this agreement in reliance on the Investor Warranties. (c) The Investor Warranties must be construed independently and are not limited by reference to another Investor Warranty. 6 Default and termination 6.1 Termination If a party has a right to terminate this agreement, that right may be exercised by that party delivering a notice in writing to the other parties stating that it terminates this agreement. 6.2 Effect of termination Termination of this agreement will not affect: (a) any other rights the parties have against one another at Law or in equity; (b) the Continuing Clauses, which survive termination or expiry of this agreement; or (c) a right or claim which arises before termination. 7 Confidentiality 7.1 Confidentiality Subject to clause 7.2, no party may: (a) disclose any Confidential Information to any person; (b) use any Confidential Information in any manner which may cause loss to the Company or the other parties; or (c) make any public announcement or issue any press release regarding this agreement or a party's involvement with the Company. 7.2 Permitted disclosure A party may disclose, and may permit its Representatives to disclose, any Confidential Information (and the other restrictions in clause 7.1 do not apply in such cases): (a) with the prior written consent of the party to whom the information relates; (b) to the extent it is required to do so by Law, any order or request of any Government Agency or by any recognised stock exchange on which its shares (or those of any of its Related Bodies Corporate) are listed; (c) to the party's Representatives; (d) to the party's affiliates (which, in the case of the Investor, includes any fund or other vehicle managed or advised by the Investor); (e) in the case of the Investor, to its investors; or (f) to a prospective purchaser of any Subscription Shares and their Representatives. 8 GST 8.1 Recovery of GST If GST is payable, or notionally payable, on a supply made under or in connection with this agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount). Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. If a tax invoice is not received prior to the provision of that other consideration, the GST Amount is payable within 10 days of the receipt of a tax invoice. This clause does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge. 8.2 Liability net of GST Where any indemnity, reimbursement or similar payment under this agreement is based on any cost, expense or other liability, it will be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability. 8.3 Adjustment events If an adjustment event occurs in relation to a supply made under or in connection with this agreement, the GST Amount will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties. 8.4 Definitions Unless the context requires otherwise, words and phrases used in this clause that have a specific meaning in the GST law (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) have the same meaning in this clause. 9 General 9.1 Notices Any notice given under or in connection with this agreement (Notice): (a) must be in writing and signed by a person duly authorised by the sender; (b) must be addressed and delivered to the intended recipient by hand, by prepaid post, by fax or by email at the address, fax number or email address last notified by the intended recipient to the sender; (c) is taken to be given and made: (i) in the case of hand delivery, when delivered; (ii) in the case of delivery by post, three Business Days after the date of posting (if posted to an address in the same country) or seven Business Days after the date of posting (if posted to an address in another country); (iii) in the case of a fax, on the day and at the time it is sent, provided that the sender's facsimile machine issues a report confirming the transmission of the number of pages in the Notice; and (iv) in the case of an email, on the day and at the time that the recipient confirms the email is received. This clause does not limit the way in which a notice can be deemed to be served under any Law. 9.2 Costs and expenses (a) Subject to clause 9.2(b), each party must bear its own costs in connection with the preparation, negotiation and execution of this agreement, the Shareholders Agreement and other ancillary documents. (b) The Company must pay to the Investor on Completion an amount equal to the Investor's legal costs incurred in connection with the preparation, negotiation and execution of this agreement, up to a maximum of $[insert] plus GST. 9.3 Stamp duty All stamp duty which may be payable on or in connection with this agreement is payable by the Investor. 9.4 Governing law The laws of [insert] govern this agreement. 9.5 Jurisdiction Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of [insert] or the courts of the Commonwealth of Australia. 9.6 Cumulative rights Except as expressly provided for in this agreement, the rights of a party under this agreement are in addition to and do not exclude or limit any other rights or remedies provided by Law. 9.7 Severability Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected. 9.8 Further a**urances Except as expressly provided in this agreement, each party must, at its own expense, do all things reasonably necessary (including executing documents) to give full effect to this agreement and the matters contemplated by it. 9.9 Assignment (a) A party may not a**ign, transfer or in any other manner deal with its rights under this agreement without the prior written agreement of each other party. (b) Any purported a**ignment, transfer or dealing in contravention of clause 9.9(a) is ineffective. 9.10 Survival and merger No term of this agreement merges on Completion of any transaction contemplated by this agreement. 9.11 Entire agreement This agreement and the Shareholders Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter. Schedule 1 Subscription Details Part A - Investor Investor Name Address for Service Subscription Shares Subscription Price Subscription Moneys [insert] Address [insert] Fax Number [insert] Email Address [insert] Contact [insert] [insert] $[insert] $[insert] Part B - Founder Founder Name Address for Service [insert] Address [insert] Fax Number [insert] Email Address [insert] Contact [insert] Schedule 2 Post Completion Issued Capital Structure Column 1 Column 2 Column 3 Shareholder Shares Fully Diluted Percentage TOTAL 100.00% TOTAL 100% Schedule 3 Warranties 1. Shares 1.1 There is no restriction on the ability of the Company to issue the Subscription Shares [that has not been validly waived]. 1.2 No Group Company is obliged to issue or allot any Shares or other securities, and no Group Company has granted any person the right to call for the issue or allotment of any Shares or other securities. 1.3 The Investor will acquire at Completion: (a) the full legal and beneficial ownership of the Subscription Shares free and clear of all Security Interests; (b) the Subscription Shares free of competing rights, including pre-emptive rights or rights of first refusal, other than under the Shareholders Agreement and the constitution of the Company; and (c) fully paid Shares that have no money owing in respect of them. 1.4 On Completion, there will be no Shares in the Company or other securities (including options) of the Company on issue apart from the Shares and options over Shares set out in the table in Schedule 2. 1.5 Immediately after Completion, the issued capital of the Company will be as set out in Schedule 2. 1.6 The Company does not legally or beneficially hold or own shares or other securities in another company or entity, other than the Subsidiaries. 2. Authority of Company 2.1 The Company and the directors of the Company have taken all necessary action to authorise the signing, delivery and performance of this agreement and the documents required under this agreement in accordance with their respective terms. 2.2 The Company has power to enter into this agreement and perform its obligations under it and can do so without the consent of any other person and free of any pre emptive rights or rights of first refusal that have not otherwise been waived in accordance with this agreement. 2.3 The Company's obligations under this agreement are valid and binding and enforceable against it in accordance with their terms. 2.4 All Group Companies have the power and capacity to own its a**ets and to carry on its Business as it is now being conducted. 3. Status of the Group 3.1 Each Group Company is a proprietary company limited by shares and is registered and validly existing under the Corporations Act. 3.2 The Company or another Group Company owns all of the shares, capital stock, equity interests, securities, and warrants and options to acquire, or other interests or rights convertible, exchangeable or exercisable into, the foregoing (Equity Interests) of each Subsidiary. 3.3 There is no option to acquire any Equity Interests in any Subsidiary. 3.4 The shares in each Subsidiary have been validly issued and are fully paid up and free of further capital contribution obligations. 3.5 No person is entitled or has claimed to be entitled to require any Subsidiary to issue any Equity Interests either now or at any future date and whether contingently or not. 3.6 There is no Security Interest, and no commitment to give or create any Security Interest, on, over or affecting any of the Equity Interests of any Subsidiary, and no person has claimed to be entitled to any such Security Interest. 3.7 No Group Company has granted any power of attorney or similar authority which remains in force. 4. Accuracy of information 4.1 All written information (including all electronic documents and email correspondence) given by or on behalf of a Group Company or their Officers, Employees, consultants or advisers to the Investor in respect of a Group Company, the Subscription Shares and the Business are: (a) accurate in all material respects; and (b) complete and not misleading whether by omission, failure to particularise or otherwise. 5. Financial position 5.1 The Accounts: (a) have been prepared in accordance with applicable Accounting Standards and the Corporations Act applied on a consistent basis; (b) fully reflect the a**ets and liabilities of the Company and Group; (c) show a true and accurate view of the financial position of the Company and Group as at the Accounts Date and the financial performance of the Company and Group for the financial period ending on the Accounts Date; and (d) are not affected by any unusual or non recurring items. 6. Intellectual Property Rights 6.1 All Intellectual Property Rights used in the Business are legally and beneficially owned or used by a Group Company. Schedule 4 Investor Warranties 1. It is a body corporate validly existing under the Laws of its place of incorporation. 2. It has the power and capacity to enter into and perform its obligations under this agreement and to own its a**ets and to carry on its business as it is now being conducted. 3. It has taken all necessary action to authorise the signing, delivery and performance of this agreement and the documents required under this agreement in accordance with their respective terms. 4. This agreement constitutes valid and binding obligations upon it enforceable in accordance with its terms. Schedule 5 Seed Preference Share Terms 1. Seed Preference Shares 1.1 These terms set out the terms of the Seed Preference Shares which may be issued by the Company. 1.2 Despite any other clause of these terms the Company is not required to comply with these Seed Preference Share terms to the extent that to do so would contravene the Corporations Act. 2. General rights attaching to Seed Preference Shares 2.1 Subject to paragraphs 3 through 8, each Seed Preference Share confers on the holders of that Seed Preference Share all of the rights attaching to one fully paid ordinary share in the capital of the Company. 3. Dividends 3.1 Each Seed Preference Share is entitled to any dividend declared on ordinary shares equal to the dividend that would be payable on the number of ordinary shares into which such Seed Preference Share would convert into if it were to be so converted pursuant to paragraph 4 on the relevant dividend record date. 4. Conversion 4.1 Each Seed Preference Share will be convertible into ordinary shares. The initial conversion price is equal to the issue price of the relevant Seed Preference Share, with the conversion price adjusted pursuant to the operation of the terms of these Seed Preference Shares (Conversion Price). 4.2 Each holder of Seed Preference Shares is entitled to convert some or all of its Seed Preference Shares into ordinary shares at any time on 10 Business Days written notice to the Company (Conversion Notice). 4.3 A notice given by a holder of Seed Preference Shares pursuant to paragraph 4.2 must state: (a) the number of Seed Preference Shares to be converted into ordinary shares; and (b) the date on which such conversion is to occur (which must be no less than 10 Business Days after the date of such Conversion Notice) (Conversion Date). 4.4 On the Conversion Date: (a) the relevant Seed Preference Shares will be converted into a number of ordinary shares determined by dividing the relevant purchase price paid per Seed Preference Share by the Conversion Price and multiplying that figure by the number of Seed Preference Shares to be converted and rounded to the nearest whole share; and (b) the Company will issue new share certificates to the relevant holder or holders of Seed Preference Shares relating to the new holding of Seed Preference Shares and ordinary shares. 5. Anti-dilution 5.1 If, prior to the conversion of any Seed Preference Shares, the Company: (a) reconstructs its share capital, the number of shares into which a Seed Preference Share may be converted must be reconstructed in the same manner; or (b) issues Shares at a price less than that paid by the holder of Seed Preference Shares, the Conversion Price will be amended as follows (calculated to the nearest tenth of a cent): CP2 = CP1 * (A + B) ÷ (A + C). Where: (i) CP2 = the Conversion Price in effect immediately after such issue of equity securities; (ii) CP1 = the Conversion Price in effect immediately prior to such issue of equity securities; (iii) A = the number of ordinary shares of the Company issued or issuable upon exercise of options or securities convertible into ordinary shares immediately prior to such issue or upon conversion or exchange of all convertible preference shares outstanding (a**uming exercise of all outstanding options or securities convertible into ordinary shares, immediately prior to such issue), but excluding any Seed Preference Shares that have not been converted; (iv) B = the number of ordinary shares that would have been issued if such equity securities had been issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Company in respect of such issue by CP1); and (v) C = the number of such equity securities issued in such transaction. 5.2 The following issues will not trigger an anti-dilution adjustment: (a) ordinary shares (or options to purchase such ordinary shares) issued under an employee incentive scheme approved in accordance with the Shareholder Agreement; or (b) shares (or options to purchase such share) issued as consideration other than for cash pursuant to a merger, consolidation, acquisition or similar transaction or combination of transactions approved by the Board. 6. Ranking With respect to amounts to be paid or repaid in respect of the Seed Preference Shares under these seed preference share terms, Seed Preference Shares will: (a) rank equally among themselves; and (b) rank senior to all other shares. 7. Preferential return of capital 7.1 In the event of a reduction of capital or winding up, the holders of the Seed Preference Shares are entitled to repayment of an amount, in priority to payments on any of the other Shares in the Company, equal to the aggregate of the following: (a) the amount paid up on the Share; and (b) the amount of all dividends declared but unpaid in respect of the Share. 7.2 In such circumstances, the holders of Seed Preference Shares do not participate in distributions of surplus a**ets or profits of the Company except as specifically set out in this constitution. 8. Variation of cla** rights 8.1 The rights attached to the Seed Preference Shares may only be cancelled, varied or modified with the agreement (whether by resolution or written consent) of the holders of at least 50% in aggregate of the Seed Preference Shares on issue. 8.2 If shareholders holding at least 50% in aggregate of the Seed Preference Shares on issue agree (whether by resolution or written consent) to the cancellation, variation or modification, it takes effect: (a) if no later date is stated in the resolution or consent; on the date of the resolution or consent; or (b) on a later date specified in the resolution or written consent. Signing page Executed and delivered as an agreement