The Nominee Shareholder Agreement is essential in South African corporate structures where shares are held by one party (the nominee) on behalf of another (the beneficial owner). This arrangement is commonly used for confidentiality, administrative convenience, or regulatory compliance purposes. The agreement must comply with South African legislation, particularly the Companies Act 71 of 2008, Financial Markets Act, and FICA requirements. It includes provisions for share voting, dividend distribution, regulatory reporting, and termination procedures. This document is crucial for establishing clear lines of authority and responsibility, protecting both parties' interests, and ensuring transparency for regulatory purposes. The Nominee Shareholder Agreement should be tailored to specific circumstances while maintaining compliance with South African corporate governance requirements and financial sector regulations.
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1. Parties: Identification of the Nominee Shareholder and the Beneficial Owner, including full legal names and registration/identification details
2. Background: Context of the agreement, including reference to the company whose shares are subject to the nominee arrangement
3. Definitions and Interpretation: Definitions of key terms used in the agreement and rules of interpretation
4. Appointment of Nominee: Formal appointment of the nominee and scope of the nomination
5. Declaration of Trust: Clear statement that shares are held in trust for the beneficial owner
6. Powers and Duties of Nominee: Detailed description of what the nominee can and cannot do, including voting rights and dividend handling
7. Rights and Obligations of Beneficial Owner: Responsibilities and rights of the beneficial owner, including decision-making authority
8. Representations and Warranties: Standard and specific warranties from both parties
9. Compliance Requirements: Obligations regarding regulatory compliance, including FICA requirements
10. Fees and Expenses: Payment terms for nominee services and allocation of costs
11. Duration and Termination: Term of agreement and circumstances under which it can be terminated
12. Confidentiality: Obligations regarding confidential information
13. Dispute Resolution: Process for handling disputes between parties
14. General Provisions: Standard boilerplate clauses including notices, entire agreement, variation, etc.
1. Share Transfer Mechanism: Detailed procedures for transferring shares when required - include when nominee arrangement involves potential transfers
2. Corporate Actions: Procedures for handling corporate actions like rights issues - include for listed companies or where corporate actions are likely
3. Multiple Beneficial Owners: Provisions for managing multiple beneficial owners - include when nominee holds shares for multiple parties
4. Foreign Exchange Provisions: Provisions dealing with foreign exchange requirements - include for cross-border arrangements
5. Tax Indemnity: Specific tax-related indemnities - include when tax implications are significant or complex
1. Schedule 1: Share Details: Details of shares subject to nominee arrangement, including share certificates numbers and class of shares
2. Schedule 2: Fee Schedule: Detailed breakdown of nominee fees and payment terms
3. Schedule 3: Reporting Requirements: Format and timing of reports to be provided to beneficial owner
4. Schedule 4: Authorized Representatives: List of authorized representatives for both parties who can give instructions
5. Appendix A: Power of Attorney: Standard power of attorney form for nominee to act on beneficial owner's behalf
6. Appendix B: Compliance Checklist: FICA and other compliance requirements checklist
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