COLLABORATION AGREEMENT (ON STAMP PAPER)
(ON
STAMP PAPER)
This
Collaboration Agreement (this “Agreement”) entered this 30 day of March, 2007
into between:-
MORE-GASTECH
(INDIA) PRIVATE LIMITED
(hereinafter called the "Indian Company"), incorporated under the Indian
Companies Act, 1956 and having its registered office at 1616, VASTANT KUNJ
, NEW
DELHI-110070,
and
Moregastech
LLC (hereinafter called the "Foreign Company") a company registered in United
Sates Of America and a fully owned subsidiary of Energtek Inc. having an address
at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
and
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,(hereinafter
called the "Indian Promoter") with address at ▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
(Haryana)
WHEREAS,
the Foreign Company is in possession of technical know-how, designs and drawings
for manufacture of CNG KITS; and
WHEREAS,
the Indian Company and the Foreign Company have agreed to set up a factory
in
India for the manufacture and sale in India and abroad of the CNG KITS with
the
aid of Foreign Company's technical know-how, .
NOW
THEREFORE, in consideration of the premises, it is hereby agreed between the
Indian Company and the Foreign Company as follows:
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1.
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Definitions.
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1.1
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As
used in this Agreement, "Product" means CNG KIT, accessories, cylinder
or/and other products designated by the Board of Directors of the
Indian
Company.
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1.2.
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All
words and expressions which are not specifically defined in this
agreement
shall have the same meaning as is given to them under the Companies
Act.
1956 ("the Companies Act"), to the extent such meanings are aligned
with
the context.
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2.
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Initial
steps-approvals
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2.1
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The
Indian Company shall take all required steps to obtain the consents
and
approvals necessary for it to do business, including any registration
or
license from the Government of India, Reserve Bank of India or any
other
State or local authorities, as the case may
be.
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2.2
|
The
Registered Office of the Indian Company will be situated in the State
of
Delhi.
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2.3
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The
Memorandum and Articles of Association (hereinafter called the
"Organizational Documents") of the Indian Company shall incorporate,
to
the extent relevant, all the terms and conditions set forth in this
Agreement. Changes/directions/ Rules/ Regulations notified by
RBI/SEBI/Department of Company Affairs should however be kept in
view in
drafting various the Organizational
Documents
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2.4
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The
Organizational Documents of the Indian Company will provide for
the
following:
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| 2.4.1 |
Actions
to be taken with approval of shareholders
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| 2.4.1.1 |
the
merger or consolidation of the Indian Company with another
entity
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| 2.4.1.2 |
the
sale of all or substantially all of the assets owned directly or
indirectly by the Indian Company
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| 2.4.1.3 |
the
acquisition, by merger, issuance of securities of the Indian Company
or
otherwise, of a significant part of the business, stock or assets
of
another entity
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| 2.4.1.4 |
the
issuance of securities of the Indian Company in connection with or
for the
purpose of effecting or facilitating any of the foregoing transactions
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| 2.4.1.5 |
any
reclassification or recapitalization of any capital stock of the
Indian
Company
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| 2.4.1.6 |
and/or
the execution of any agreement in furtherance of any of the actions
in
sub-clauses 2.4.1.1 to 2.4.1.5
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| 2.4.1.7 |
authorize
and create any new securities
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| 2.4.1.8 |
any
dissolution, liquidation, or winding up of the Indian Company or
any
agreement to become so obligated
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| 2.4.1.9 |
any
redemption or other purchase of any securities issued by the Indian
Company, other than pursuant to an option plan
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| 2.4.1.10 |
the
selection of the auditor for the Company
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| 2.4.2 |
Actions
to be taken by approval of the Board of Directors
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| 2.4.2.1 |
issue
or sell securities, including, without limitation, any warrant, option
or
right (contingent or otherwise) to purchase or acquire any security
of the
Indian Company, or the adoption of any option, phantom interest or
similar
plan, grants and the adoption and issuances pursuant to a stock option
plan
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| 2.4.2.2 |
change
the business line or enter into any new business
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| 2.4.2.3 |
the
declaration or making of any distributions payable in cash or other
property with respect to any equity securities of the Indian
company
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2
| 2.4.2.4 |
engaging
in any material transaction with a stockholder of the Indian Company
or
any affiliate thereof, including without limitation, hiring said
persons
as employees or consultants of the Indian Company, increasing their
compensation or entering into any material transaction out of the
ordinary
course of business
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| 2.4.2.5 |
the
compensation and benefit arrangements payable to any officer of the
Indian
Company
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| 2.4.2.6 |
the
commencement or settlement of any litigation or threatened
litigation
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| 2.4.2.7 |
any
obligation or incurrence of any debt in which the amount exceeds
Indian
Rupees 5 Lacs (Rupees five Lacs only)
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3
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Capital
structure
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3.1
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The
total capital investment for the project is Rs 82 Lacs (rupees eighty
two
Lacs only).
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3.2
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The
authorized capital of the Indian Company shall be Rs. 10 Lacs (rupees
ten
Lacs) divided into 1 Lacs (one Lacs) equity shares of Rs. 10 each
.
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3.3
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The
issued share capital of the Indian Company shall be held by the parties
in
the following proportion:
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Promoters
50
per
cent
Foreign
Company 50
per
cent
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3.4
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The
Promoters and the Foreign Company commit to invest each the amount
of Rs
41 Lacs (rupees fourty one Lacs) , either by way of equity capital
or by
way of unsecured loans as specified in the Timetable and Milestones
in
Appendix A.
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4
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Board
of
Directors
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4.1
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The
Board of Directors of the Indian Company (hereinafter called
"the Board")
shall have, subject only to the provisions of this Agreement
and the
Companies Act, the ultimate responsibility for management and
control of
the Indian Company.
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4.2
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The
Board shall consist of not less than 2 nor more than 14 members
(hereinafter called "Directors"), as fixed by resolution of the
shareholders and whose members shall be nominated proportionally
by the
shareholders The initial Board shall consist of 4 Directors,
2 of whom
shall be the nominees of the Foreign Company and two of whom
shall be the
nominees of the Indian
Promoter.
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4.3
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The
Board shall designate one of the nominees of the Foreign Company
as the
Chairman of the Board and specify his term which in no event shall
exceed
2 years, after which the board may renew his
term.
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3
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4.4
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The
Chairman of the Board shall serve also as Chairperson of the
Board
meetings. If the Chairman is not present at a meeting, before
the
commencement of such Board meeting, the Directors shall appoint
from
amongst themselves a Director to chair the
meeting
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4.5
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The
Directors need not hold any qualification shares.
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4.6
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The
Directors `shall subscribe to and agree to be bound by the relevant
terms
of this Agreement.
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4.7
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The
Board shall arrange to procure the balance capital required after
securing
the equity specified in section 3.3 above, by issue of debentures
(convertible or non-convertible), bonds, loans, etc. on terms and
conditions as determined by the
Board.
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5
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Managing
Director
of the company
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5.1
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The
Board shall appoint the Managing Director of the Indian
Company, subject
to the provisions of the Companies Act, and establish
his remuneration. It
is agreed by the Indian Promoter and the Foreign Company
that ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ will be elected as Managing Director. ▇▇.
▇▇▇▇▇▇▇ will be
asked by the Board to confirm his readiness to serve
as Managing Director
for a period of at least 5 (five)
years.
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5.2
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The
Managing Director shall serve as the Chief Executive Officer
of the
Company, and shall represent the Company, enforce the matters
resolved by
the Board and be responsible for the general management of
the Company.
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5.3
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The
Managing Director shall exercise his powers, subject to the
terms of this
Agreement and the powers reserved to the Board and to the Shareholders
by
the Organizational Documents and applicable law, under the
general
supervision, control and direction of the Board. The powers
and the duties
of the Managing Director shall be as determined from time to
time by the
Board and the powers and the duties of all other officers of
the Company
shall be as determined from time to time by the Managing Director
or by
the Board. .
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6
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Exercise
of voting
rights
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6.1
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The
Indian Promoters and the Foreign Company shall exercise
their respective
voting rights in the larger interest of the Indian
Company and observe in
letter and spirit the various provisions of this
Agreement.
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6.2
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The
Indian Promoters and the Foreign Company shall not exercise
the voting
rights in the board meeting so as to removing the Managing
Director or the
Chairman of the company without stating the reasons therefore.
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7
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Transfer
of
shares
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7.1
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The
shares of the company shall be fully transferable
as provided under
section 22A (3) of the Securities Contracts
Regulation Act.
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4
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7.2
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Notwithstanding
the above, the Indian Promoters and the Foreign Company
commit to the
restrictions relating to share transfers and issuances
specified in the
Shareholders Agreement, including without limitation
Rights of First
Refusal, Co-Sale Rights and Pre-emptive
Rights.
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7.3
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The
Foreign Company shall be entitled to participate
proportionally in all the
rights, payment of dividends, issuance of bonus shares
and any other
benefit provided to a shareholder of the Indian Company
as other
shareholders of the Indian
company.
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8
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Disposal
of
undertakings
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8.1
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It
is not contemplated by this Agreement
that the Indian Company will dispose
of the whole or substantially the whole
of its undertaking, assets or
investments by way of sale to any other
party.
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8.2
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The
prior written consent of the Foreign Company
shall be required for the
grant of any mortgage or charge on the properties
of the Indian Company,
and the same is to be recorded in the minutes
of the Board at which such
action is
authorized.
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9
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Provision
of technical
know-how
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9.1
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The
Foreign Company shall
provide the technical
know-how required
to
manufacture products
in India as per the
terms regarding payment
of lump
sum amount, designs/
drawings fee, etc.
as may be mutually
decided upon in
due course of time
and subject to such
rules and regulations
as maybe
stipulated by the
Government of India
or the Reserve Bank
of
India.
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9.2
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In
consideration of the use of the Foreign Company's
trade ▇▇▇▇ by the Indian
Company, separate payment would be made as
per the terms mutually agreed
upon between the Indian Company and the Foreign
Company.
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9.3
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In
consideration of the continued use of the patent
rights by the Indian
Company pursuant to the transfer of technical
know-how, the Indian Company
shall pay the Foreign Company a royalty of
such percent of the ex-factory
sale price of the product as may be mutually
agreed upon between both the
parties from time to time ( subject to withholding
tax as applicable as
per applicable laws in India) , subject to
such rules and regulations as
may be stipulated by the Government of India/Reserve
Bank of
India.
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9.4
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The
Indian Company shall send its technical personnel
to the factory of the
Foreign Company as per approved programme,
for proper and appropriate
training of its staff in order to efficiently
run the factory in
India.
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9.5
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At
the request of the Indian Company, the Foreign
Company will send its
technical personnel to the project site in
India in order to construct and
commission the plant and to see through the
trial production
successfully.
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9.6
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At
the request of the Indian Company, the Foreign
Company will take care to
engage such number of technicians with appropriate
level of expertise in
order to train the plant personnel in problems
of breakdown or snag in the
working of the plant, and on the equipment
or apparatus installed in India
pursuant to the technical know-how
arrangements.
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5
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9.7
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The
terms of the remuneration payable to the technical
personnel of the
Foreign Company shall be decided upon by the
Indian Company and the
Foreign company by mutual
agreement.
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10
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Force
majeure
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10.1
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The
Indian Company and the Foreign
Company shall not in any
way be liable or
responsible to each other
for any delay in executing
any undertaking under
this Agreement or for inaction
or non-performance thereof,
if such delay
or inaction is caused by
reasons such as, strike,
lock-out, accident by
fire, flood, cyclone, civil
commotion, internal rebellion,
war or any
other act of God over which
neither party has any control,
no liability
would attach to either of
the parties to this
Agreement.
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11
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Manner
of giving
notice
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11.1
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The
parties to the Agreement shall
give notice to the other party
by telex,
air mail, speed post, email, or
by any other means mutually agreed
upon
from time to time. However, documents,
correspondence and other relevant
papers shall be sent by courier
only.
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11.2
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Unless
otherwise indicated by notice, each party
to this Agreement shall send all
communication only at the address provided
in this
agreement.
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12
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Jurisdiction
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12.1
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This
Agreement is
subject to Indian
laws and action
will lie only
within the
courts situated
in the state
of Delhi
(India)
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13
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Arbitration
of
disputes
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All
disputes arising from and
in connection with this Agreement
shall be set as per
the procedures stated in
the Shareholders Agreement.
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14
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General
conditions
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14.1
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The
parties to this Agreement
are entitled to specific
performance of the
terms of this Agreement,
including the obligations
concerning transfer of
shares, exercise of voting
rights, transfer of technology,
repatriation of
funds,
etc.
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14.2
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Each
party agrees to the condition that
commencing on the date hereof no
competing project shall be set up
by them with any other company in
India
for a period of 5 years from the
termination of this Agreement; however,
the Foreign Company shall be permitted
to enter into collaboration
agreements with corporate houses/
big manufacturers for production
of
kits, cylinders etc for their captive
use.
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6
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14.3
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Each
of the parties to this Agreement
hereby undertakes not to divulge
any
technical and trade secrets known
to each other, to any third party,
as
more particularly set forth in the
Shareholders
Agreement..
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14.4
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The
Indian Company shall issue, within
not more than 35 days from the end
of
each quarter, quarterly financial
statements reviewed by LODHA & Co.,
as long as said firm remains the
local representative of BDO
International.
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14.5
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The
Indian Company shall issue, within
not more than 35 days from the end
of
each calendar year , audited (by
the same CPA as above) financial
statements for the said
year.
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14.6
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All
the financial statements specified
above shall be prepared in accordance
with US
GAAP.
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14.7
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This
Agreement may be signed in
counterparts.
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In
witness whereof the parties have executed this Agreement on the date first
written above.
Signed,
sealed and delivered on behalf of the above:
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For
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For
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For
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/s
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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||
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MoreGasTech
(India) Private Limited
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▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Moregastech
LLC
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In
the presence of:
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In
the presence of:
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In
the presence of:
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_____________________
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__________________
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______________
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Name:
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Name:
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Name:
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7
APPENDIX
A
| 1. |
Preemptive
Rights
|
If
at any
time prior to an initial public offering of its equity securities More Gastech
(India) Private Limited (hereinafter "the Company") proposes to issue and sell
any securities of the Company (including, without limitation, Ordinary Shares
or
any class of preferred shares), whether or not already authorized, or rights,
options or warrants to purchase such shares, and securities of any type
whatsoever that are, or may become, convertible into shares of the Company
(all
the previous mentioned together hereby referred to as the "Proposed Issue"
or
"New Securities" as relevant) the Foreign Company (hereinafter "the Investor")
shall have the right to exercise the Proposed Issue as follows:
| 1.1. |
In
the event the Company undertakes an issuance of New Securities, it
shall
give the Investor written notice thereof, which notice shall be given
prior to such issuance, describing the type and amount of New Securities
offered and the price and the terms upon which the Company proposes
to
issue the same, and offering the Investor the opportunity to purchase
such
New Securities. The Investor shall have thirty (30) days from the
date of
such notice to accept such offer, in whole or in part, by written
notice
to the Company.
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| 1.2. |
In
the event that the Investor fails to accept such offer as to all
of the
New Securities, the Company shall have the right within one hundred
and
twenty (120) days thereafter to sell or enter into an agreement (pursuant
to which the sale of New Securities covered thereby shall be closed,
if at
all, within sixty (60) days from the date of said agreement), to
sell the
New Securities as to which such offer was not accepted, provided
however
that no such sale be effected at a price or upon terms more favorable
to
the purchasers thereof than those specified in the Company's notice
to the
Investor. In the event the Company has not sold or entered into an
agreement to sell such New Securities within the periods specified
above,
the Company shall not thereafter issue or sell such New Securities
without
first complying with the procedure set forth in this
Article.
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| 2. |
Transfer
of Shares
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| 2.1. |
No
transfer, sale, assignment, pledge or other disposition (each, a
“Transfer”) of shares by any Shareholder, other than a transfer to a
Permitted Transferee, shall be effective unless the Transfer has
been
approved by the Board of Directors. The Board of Directors may refuse
to
approve a Transfer to a competitor of the Company, or if the Board
of
Directors determines that such Transfer is detrimental to the best
interests of the Company, in each case, as shall be determined in
good
faith, by the Board of Directors, or if the Transferee is not willing
to
undertake the same obligations that Transferor has as a holder of
shares.
|
8
| 2.2. |
The
limitations set forth in Article 2.1 shall not apply to any Transfer
to
(i) a transferee by operation of law; (ii) a spouse, children, or
grandchildren of the Shareholder, other than to minors and persons
incapacitated as a matter of law; (iii) a person controlling or controlled
by such Shareholder (for the purposes of this definition, “control”
[including, with correlative meanings, the terms “controlled by”] shall
mean the possession, directly or indirectly, of the power to direct
or
cause the direction of the management and policies of such person,
whether
through the ownership of voting securities or the power to appoint
most of
the directors or the CEO), provided that such transferee (each transferee
as defined in this section, a “Permitted Transferee”) becomes a party to
and agrees to be bound by all agreements binding upon the transferor
immediately prior to such transfer, and the shares so transferred
remain
subject to such agreements and the Company's
Articles.
|
| 2.3. |
Each
Transfer of shares shall be made in writing in the form appearing
hereinbelow, or in a similar form, or in any form approved by the
Directors from time to time:
|
"Share
Transfer Deed
I,
_____________ , of __________________, for valuable consideration paid to me
by
______________ of ___________________ ("Transferee"), do hereby transfer to
the
Transferee _____ share(s), par value Rupees 10 each, numbered ________ to
_________ (inclusive), in the company called MoreGastech India Private Limited
to hold unto the Transferee, his executors, administrators and assigns, subject
to the same terms and conditions on which I held the same at the time of the
execution hereof; and I, the said Transferee, do hereby agree to take the said
share(s) subject to the aforesaid terms and conditions.
In
witness whereof we have hereunto set our hands this ____ day of _______,
____.
__________________
_________________
Transferee
Transferor"
| 2.4. |
Such
form shall be executed both by the transferor and transferee, and
delivered to the Office together with the transferred share certificates,
if share certificates have been issued with respect to the shares
to be
transferred, and any other proof of the transferor's title that the
Directors may require. The share transfer deed with respect to a
share
that has been fully paid may be signed by the transferor only. A
deed of
transfer that has been registered, or a copy thereof, as shall be
decided
by the Directors, shall remain with the Company; any deed of transfer
that
the Directors shall refuse to register shall be returned, upon demand,
to
the person who furnished it to the Company, together with the share
certificate, if furnished.
|
9
| 2.5. |
The
transferor shall be deemed to remain a holder of the shares until
the name
of the transferee is entered into the Register in respect
thereof.
|
| 2.6. |
The
Company may impose a fee for registration of a share transfer, at
a
reasonable rate as may be determined by the Directors from time to
time.
|
| 2.7. |
Upon
the death of a Shareholder or the dissolution of a Shareholder, the
remaining partners, in the event that the deceased was a partner
in a
share, or the administrators or executors or heirs of the deceased,
in the
event the deceased was the sole holder of the share or was the only
one of
the joint holders of the share to remain alive, shall be recognized
by the
Company as the sole holders of any title to the shares of the deceased.
However, nothing aforesaid shall release the estate of a joint holder
of a
share from any obligation to the Company with respect to the share
that he
held in partnership.
|
| 2.8. |
Any
person becoming entitled to a share as a consequence of the death
or
bankruptcy or liquidation of a Shareholder shall, upon such evidence
being
produced as may from time to time be required by the Directors, have
the
right either to be registered as a Shareholder in respect of the
share,
or, instead of being registered himself, to transfer such share to
another
person, in either instance subject to the Directors' power hereunder
to
refuse or delay registration as they would have been entitled to
do if the
deceased or the bankrupt had transferred his share before his death
or
before his bankruptcy, and subject to all other provisions hereof
relating
to transfers of shares.
|
| 2.9. |
A
person becoming entitled to a share because of the death of a Shareholder
shall be entitled to receive, and to give receipts for, dividends
or other
payments paid or distributions made, with respect to the share, but
shall
not be entitled to receive notices with respect to company meetings
or to
participate or vote therein with respect to that share, or to use
any
other right of a Shareholder, until he has been registered as a
shareholder with respect to that
share.
|
| 3. |
Rights
of First Refusal Transfer Notice.
|
| 3.1. |
If
at any time any shareholder of the Company proposes to Transfer any
securities of the Company (including, without limitation, Ordinary
Shares
or any class of preferred shares), whether or not already authorized,
or
rights, options or warrants to purchase such shares, and securities
of any
type whatsoever that are, or may become, convertible into shares
of the
Company (“Various Securities”) to one or more third parties other than a
Permitted Transferee, then such shareholder (“Transferor”) shall give the
Company and the other shareholder (a "Holder") written notice of
the
Transferor’s intention to make the Transfer (“Transfer Notice”), which
Transfer Notice shall include (i) a description of the Various
Securities to be transferred (“Offered Shares”), (ii) the identity of
the prospective transferee(s) and (iii) the consideration and the
material terms and conditions upon which the proposed Transfer is
to be
made.
|
10
| 3.2. |
Holder’s
Option.
The Holder shall have an option for a period of twenty (20) days
from
receipt of the Transfer Notice to elect to purchase the Offered Shares
at
the same price and subject to the same material terms and conditions
as
described in the Transfer Notice. The Holder may exercise such purchase
option and, thereby, purchase all or any portion of the Offered Shares,
by
notifying the Transferor and the Company in writing, before expiration
of
the twenty (20) day period as to the number of such shares which
it wishes
to purchase.
|
| 3.3. |
If
a Holder gives the Transferor notice that it desires to purchase
the
Offered Shares then payment shall be by check or wire transfer, against
delivery of the Offered Shares at a place agreed upon between the
parties
and at the time of the scheduled closing therefore, which shall be
no
later than ten (10) days after the delivery of the notification to
the
Transferor.
|
| 4. |
Right
of Co-Sale
|
| 4.1. |
Subject
to section 3
above, after receiving a notice from the Transferor, the other Holder
may
notify Transferor in writing, within fifteen (15) days after delivery
of
the Transfer Notice referred to in Section 3,
about its intention to participate in the sale of Offered Shares
(a
"Selling Holder") and shall have the right to participate in such
sale of
Offered Shares with the Transferor, on the same terms and conditions
as
specified in the Transfer Notice, and, subject to agreement amongst
the
Selling Holders, in proportion to the number of shares owned by the
Selling Shareholder to the number of shares owned by all Selling
Shareholders, including the Transferor.
|
| 4.2. |
Selling
Holder’s notice to the Transferor shall indicate the number of Various
Securities the Selling Holder wishes to sell under its right to
participate, subject to the limitation in section 4.1
above.
|
| 4.3. |
Each
Selling Holder shall effect its participation in the sale by delivering
within ten (10) days to the Company for transfer to the prospective
purchaser one or more certificates, properly endorsed for transfer.
|
11
| 4.4. |
To
the extent that any prospective purchaser or purchasers refuses to
accept
such assignment or otherwise refuses to purchase Various Securities
from a
Selling Holder exercising its rights of co-sale hereunder, the Transferor
shall not sell to such prospective purchaser or purchasers any Offered
Shares (and the Company shall not record such transfer) unless and
until,
simultaneously with such sale, the transferee shall purchase such
Various
Securities from such Selling Holder for the same consideration and
on the
same terms and conditions as the proposed transfer described in the
Transfer Notice.
|
| 4.5. |
Non-Exercise
of Rights. Notwithstanding anything to the contrary, to the extent
that
the Transferor shall have not received requests from the Holders
(together) to purchase all of its Offered Shares, the Transferor
shall be
entitled to sell the Offered Shares, in whole or in part, to any
third
party, upon terms and conditions no more favorable than those specified
in
the Transfer Notice, within 60 days after the expiration of such
rights of
the Holders. Without derogating from the above, to the extent that
any
party has not exercised its rights to join the selling of the Offered
Shares the Transferor shall have a period of sixty (60) days from
the
expiration of such rights in which to sell the Offered Shares, upon
terms
and conditions (including the purchase price) no more favorable than
those
specified in the Transfer Notice to the third-party transferee(s)
identified in the Transfer Notice. The third-party transferee(s)
shall
acquire the Offered Shares subject to rights of first refusal and
co-sale
rights under this Agreement. In the event a Transferor does not consummate
the sale or disposition of the Offered Shares within the sixty (60)
day
period from the expiration of these rights, the first refusal rights
and
co-sale rights shall be applicable to any subsequent disposition
of the
Offered Shares until such right lapses in accordance with the terms
of
this Agreement. Furthermore, the exercise or non-exercise of the
rights
shall not adversely affect rights as to subsequent purchases and/or
sales.
|
| 5. |
Limitations
to Rights of Refusal and Co-Sale.
|
| 5.1. |
Notwithstanding
the provisions of Section 3 and 4 of this Agreement, (i) the Holders
may sell or otherwise transfer and/or assign, with or without
consideration, equity Various Securities to any Permitted Transferee
provided that
such Transferee has agreed in writing to assume the obligations of
the
transferor under all agreements involving the Company, and provided further
that such Permitted Transferee agrees not to further Transfer their
holdings or rights except to Permitted
Transferees
|
12
| 6. |
Number
of Shares
|
| 6.1. |
For
the purposes of determining the number of shares a party is entitled
to
sell or purchase pursuant to this Agreement, the shares held or owned
by
such party shall be deemed to include any Ordinary Shares (assuming
full
conversion of all convertible securities into Ordinary Shares and
assuming
exercise of any securities exercisable for Ordinary Shares but not
including the Employee Stock Option Plan securities) held by such
party.
|
| 7. |
Prohibited
Transfers
|
| 7.1. |
Any
attempt by a Holder to transfer Various Securities in violation of
the
above sections shall be void and the Company agrees it will not effect
such a transfer nor will it treat any alleged transferee(s) as the
holder
of such shares without the written consent of all the other
Holders.
|
13
SHAREHOLDERS
AGREEMENT
THIS
SHAREHOLDERS AGREEMENT (the
“Agreement”)
is made
at New Delhi on the 30th day of March, 2007:
BY
AND AMONG
Moregastech
LLC a company registered in United Sates Of America and a fully owned subsidiary
of Energtek Inc.,
having
an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
(
hereinafter referred to “Foreign Promoter”).
And
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and others having business address at ▇-▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇
(Haryana)
, Indian
(hereinafter referred to “Indian Promoter”)
And
MORE-GASTECH
(INDIA) PRIVATE LIMITED having its registered office of business at ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ (hereinafter referred to as the
“Company”)
RECITALS
Whereas
Foreign Promoter has long been engaged in the manufacture and sale of CNG Kits
and accessories etc , and has acquired and possesses valuable experience and
technical know-how on the manufacture and use of such products;
Whereas
Indian Promoters have promoted and are running the business of
the
Company, and in order to undertake the business more competently, the Parties
(as defined in Section 1 hereunder) to this agreement are entering into a
Collaboration Agreement and into this
Agreement for the purpose of recording their understandings and agreements
on
the terms and conditions regulating their relationship as Shareholders of the
Company, including among others the manner in which the Company’s affairs will
be conducted, the transfer of Equity Shares or other securities related to
the
Company, and the Parties’ mutual rights and obligations.
NOW,
THEREFORE,
in the
light of the mutual premises and the mutual covenants set forth herein, the
Parties agree as follows:
14
8. DEFINITIONS
AND INTERPRETATIONS
In
this
Agreement (including the recitals above and the Schedules hereto), except where
the context otherwise requires, the following words and expressions shall have
the following meanings:
“Affiliate
”
shall
mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such first Person.
For
purposes of this definition, the term “control” (including, with correlative
meaning, the terms “controlled by” and “under common control with”) as applied
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management of that Person whether through
ownership of voting securities or otherwise.
“Agreement”
shall
mean this Shareholders’ Agreement, as the same may be amended, modified, and
supplemented from time to time in accordance with the terms and conditions
hereof.
“Applicable
Laws”
shall
mean the federal, state and local laws of India, and all orders, rules,
regulations, decrees, policies, judicial decisions, notifications or other
similar directives issued by any executive, legislative, judicial or
administrative entity in India, as any of them may be amended from time to
time.
“Articles
of Association”
shall
mean the articles of association of the Company, as the same may be amended,
modified, and supplemented from time to time in conformance with this Agreement.
“Board”
shall
mean the board of directors of the Company.
“Companies
Act”
shall
mean the Companies Act, 1956, as amended from time to time, applicable to
companies incorporated in India.
“Confidential
Information”
shall
have the meaning set forth in 13.
“Defaulting
Party”
shall
have the meaning set forth in Clause0.
“Director”
means a
member of the Board (including any duly appointed alternate director)
15
“Dispute
”
any
dispute, difference, conflict or claim arising out of or in relation to this
Agreement or the performance of the same.
“Encumbrance” means
any
lien, charge, security interest, pledge, hypothecation, mortgage, right of
first
refusal, preemptive right or any other restriction
“Equity
Shares”
means
the equity shares of the Company as of par value of Rs.10/-per share, in the
Equity Capital as set forth in the Collaboration Agreement.
“Financial
Year”
means
the financial year of the Company, which shall commence on April 1 of each
calendar year and end on March 31 of the next calendar year. Notwithstanding,
for reporting purposes the firm will have a Reporting Financial Year ending
on
December 31 of each calendar year. As soon as permitted by Applicable Laws
the
financial year shall be unified to December 31st
of each
calendar year.
“General
Meeting”
shall
mean a general meeting of the Shareholders of the Company held in accordance
with the Organizational Documents of the Company, this Agreement and Applicable
Laws.
“Gross
Revenue”
means
the total revenue of the Company including but not limited to (i) revenue
accrued but not received, (ii) accrued and received (iii) received but not
accrued from any advances or securitisation, including but not limited to
revenue generated from the sale/lease of lands/buildings, or any other sources
of revenue.
“Initial
Agreements”
shall
mean the Collaboration Agreement and this Agreement.
“Lenders”
means
those Persons including but not limited to banks, financial institutions,
international credit agencies, non-banking financial companies, who extend
or
agree to extend a credit facility to the Company in relation to the Project.
“Memorandum
of Association”
shall
mean the memorandum of association of the Company, as the same may be amended,
modified, and supplemented from time to time in conformance with this Agreement.
16
“Notice
of Dispute ”
shall
have the meaning set forth in Clause 9
“Organizational
Documents”
shall
mean the Memorandum of Association and the Articles of Association.
“Parties”
shall
mean parties to this Agreement, and “Party” shall mean any of them.
“Percentage
Equity Interest”
means
at any time with respect to any Party, the proportion that the number of Shares
held by such Party bears to the total number of Shares held by all the Parties.
"Person"
means
physical person or legal entity, whichever applicable.
"Pro
Rata Share "
means,
with respect to any Shareholder, the proportion that the number of Equity Shares
held by such Shareholder and its Affiliates bears to the aggregate number of
Equity Shares held by all Shareholders
“Right
of First Refusal”
shall
have the meaning set forth in Appendix A
“Rupee
or Rs.”
shall
mean the lawful currency of India.
“Share”
shall
mean any share in the capital of the Company and “Shares”
shall
be construed accordingly.
“Shareholders”
shall
mean the existing shareholders of the Company and any person who acquires Shares
in the Company, and “Shareholder” shall mean any of them.
“Subsidiary”
means
any other person in which the Company directly or indirectly holds 50% or more
of the equity securities or voting power of such Person.
“Transfer”
means
the sale, gift, pledge, assignment, transfer, transfer of any interest in trust,
mortgage, alienation, hypothecation, Encumbrance or disposition of Equity Shares
or securities that can be converted to Equity Shares as the context may require,
in any manner whatsoever, voluntarily or involuntarily, including, without
limitation, any attachment, assignment for the benefit of creditors or
appointment of a custodian, liquidator or receiver of any of its properties,
business or undertaking, but shall not include transfer by way of testamentary
or intestate succession
17
In
this
Agreement (unless the context requires otherwise):
reference
to the singular includes a reference to the plural and vice versa, and reference
to any gender includes a reference to all other genders;
reference
to an individual shall include his legal representative, successor, legal heir,
executor and administrator;
reference
to statutory provisions shall be construed as meaning and including references
also to any amendment or re-enactment (whether before or after the date of
this
Agreement) for the time being in force and to all statutory instruments or
orders made pursuant to statutory provisions;
references
to any statute or regulation made using a commonly used abbreviation, shall
be
construed as a reference to the short title of the statute or full title of
the
regulation;
references
to any Article, Clause, Schedule, Annex, Appendix or Exhibit shall be deemed
to
be a reference to such Article, Clause, Schedule, Annex, Appendix or Exhibit
of
or to this Agreement; and
Any
reference in a provision of this Agreement to any approval of any Party required
under another provision of this Agreement shall be deemed to have expired or
terminated if the second provision has expired or terminated.
The
Exhibits, Annexes, Appendices and Schedules to this Agreement shall be deemed
to
form an integral part of this Agreement.
9. CAPITALIZATION
OF THE COMPANY
Main
objects of the Company
The
purpose of the Company for which it is incorporated is as per main objects
contained in the memorandum and articles of associations of the Company. The
Company is a limited liability company established under the laws of the
Republic of India.
Authorized
Capital
The
subscribed and paid up capital of the company is set forth in the Collaboration
Agreement executed and delivered among the Parties on the date hereof. Any
increase in the Authorized Capital, shall be with the mutual consent of the
Indian Promoter and the Foreign Promoter.
18
Shareholdings
The
holdings of the Parties (together with their respective Affiliates) is set
forth
in the Collaboration Agreement executed and delivered among the Parties on
the
date hereof
The
restrictions with respect to the Equity Shares is set forth on Appendix A
annexed hereto and made an integral part of this Agreement.
Financing
To
the
extent required in connection with the financing for the Company and pursuant
to
and in accordance with the financing documents, each Party, when required,
shall
(i) pledge all Shares owned by it and all rights under this Agreement as
security for such financing, (ii) subordinate all of its interest under this
Agreement and any claims against the Company to the rights of the lenders and
(iii) take any other similar or related actions requested by the lenders that
are usual and customary.
10. COMPANY’S
BUSINESS AND DIVIDENDS
Business
The
Business shall be conducted in accordance with the Initial Agreements, the
Organizational Documents and Applicable Laws for the benefit of and in the
best
interests of the Shareholders.
Dividends
The
Parties acknowledge and agree that the Company’s dividend policy shall be to
maximize Shareholder value. Each Party shall procure that (subject to any
restrictions under the financing documents or any Applicable Laws) the full
amount of the Company’s profits available for distribution in respect of each
financial year during the term of this Agreement after making such transfers
to
reserves and provisions or other transfers of the profits within the Company,
as
in the opinion of the Board ought reasonably to be made, is distributed by
the
Company to the Parties by way of dividends.
19
11. CORPORATE
GOVERNANCE
Board
of Directors
Composition
of the Board
The
composition of the Board of Directors is set forth in the Collaboration
Agreement executed and delivered among the Parties on the date hereof.
Committees
of the Board
In
the
event any committee(s) is formed by the Board, the Parties hereby agree the
representation of the Shareholders on such committee shall be in the same
proportion as their respective representation on the Board. The right of the
Shareholders to appoint their nominees to such committee shall be similar to
the
rights each of the Shareholder has to appoint their nominees to the Board.
Removal
and Replacement of Directors
A
Shareholder who has a right to nominate a Director in accordance with the terms
hereof and the provisions of the Companies Act shall have the right to remove
such Director.
A
Director shall be removed from the Board, with or without cause, upon the
affirmative vote of the Shareholders who appoint such Director in accordance
with this sub-clause 4.1.2 and the provisions of the Companies Act. Each
Shareholder shall vote its Equity Shares for the removal of a Director upon
the
directions of the Shareholder that nominated such Director.
Any
Director can be automatically removed for cause, which includes, without
limitation, (i) willful and continuing disregard of his job responsibilities
or
material breach of this Agreement or (ii) fraud, embezzlement, conviction of
a
felony or serious crime, violation of ethics code or other serious
misconduct.
In
the
event any Director resigns or is removed in accordance with this clause the
Shareholder that nominated such Director will have the right to elect such
Director's successor or replacement and such successor or replacement Director
shall be nominated and elected on or as soon as possible after the date of
such
resignation or removal.
20
Director's
Access
Each
Director shall be entitled to examine the books and accounts of the Company.
The
Company shall provide information relating to the business affairs and financial
position of the Company as such Director may reasonably require. Any Director
may provide such information to a Shareholder that nominated him.
Alternate
Directors
Each
Shareholder shall be entitled to nominate an alternate Director to act in
accordance with the Companies Act for any Director nominated by that
Shareholder. Each Shareholder shall also have a right to withdraw its nominated
alternate Director and nominate another in his place. The Parties shall take
all
such actions as may be required to cause any alternate Director nominated
pursuant to this sub-clause to be duly elected or appointed.
Board
Meetings
Frequency
and Location
Meetings
of the Board shall take place in accordance with the requirements of the
Companies Act at least once in every three-month period. Meetings shall be
held
in New Delhi, or at any other location, as decided by the Chairman of the Board
or by other calling party.
Notice
A
meeting
may be called by the Chairman of the Board or any one Director giving notice
in
writing to the Secretary specifying the date, time and agenda for such meeting.
The Secretary shall upon receipt of such notice give a copy of such notice
to
all Directors of such meeting, accompanied by a written agenda specifying the
business of such meeting and copies of all papers relevant for such meeting.
Not
less than 7 days' notice shall be given to all Directors; provided, however,
that such notice period (i) shall not apply in the case of an adjourned meeting
pursuant to sub-clause 4.2.3 and (ii) may be reduced if approved by all of
the
Directors in writing. The Board shall at any meeting not adopt any resolution
covering any matter that is not specified on the agenda for such meeting unless
all the Directors are present at such meeting and vote in favour of such
resolution.
21
Quorum
Subject
to the provisions of the Companies Act, all meetings of the Board shall require
a quorum of at least two Directors, provided however that the quorum must
include at least one Director from each party. If such a quorum is not present
within one hour from the time appointed for the meeting, the meeting shall
adjourn to the same place and time seven days later (or if such day is not
a
Business Day, at the same time on the next following Business Day), at which
meeting the Directors present shall constitute a valid quorum even though a
Director from other party , as the case may be, is not present, provided that
notice of such adjourned meeting shall have been delivered to all Directors
at
least five days prior to the date of such adjourned meeting.
Voting
at
a Board meeting.
Each
Director counts as one vote. The adoption of any resolution of the Board,
whether by circular resolution or otherwise, shall require the affirmative
vote
of a majority of the Directors, or a majority of the present directors, in
person or by proxy, in a Board meeting. The Board shall not, at any meeting,
adopt any resolution covering any matter that is not specified on the agenda
for
such meeting unless all Directors have been given notice of such matter at
least
seven days prior to the meeting, which notice shall be accompanied by a written
agenda of the matters along with the supporting documents to be considered
at
the meeting, or unless all Directors provide their consent to the resolution
on
the matter.
Expenses
The
reasonable costs of attendance of Directors at Board meetings shall be borne
by
the Company, including traveling, lodging, boarding etc.
Shareholders'
Meetings
Quorum
for Shareholders Meetings
Subject
to the provisions of the Companies Act, all meetings of the shareholders of
the
Company shall require a quorum of at least two Shareholders holding a majority
of the issued shares, provided however that the quorum must include at least
one
shareholder from each party. If such a quorum is not present within one hour
from the time appointed for the meeting, the meeting shall adjourn to the same
place and time seven days later (or if such day is not a Business Day, at the
same time on the next following Business Day), at which meeting the Shareholders
present shall, subject to their constituting a valid quorum under Indian law,
constitute a valid quorum even though representative from each party as the
case
may be, is not present, provided that notice of such adjourned meeting shall
have been delivered to all Shareholders at least five days prior to the date
of
such adjourned meeting..
22
At
any
Shareholders Meeting, the actions stated in clause 2.4.1 in the Collaboration
Agreement must be consented to by the Foreign Company:
OTHER
ARRANGEMENTS
From
and
after the date hereof, each Shareholder shall vote its Equity Shares at any
general or extraordinary general meeting of the Shareholders (a “Shareholders
Meeting”), and shall take all other actions necessary, to give effect to the
provisions of this Agreement (including, without limitation, Clause 4.1) and
to
ensure that the Organizational Documents are amended to incorporate the
provisions of the Initial Agreements including the rights and privileges of
the
Shareholders, to the extent permitted by Applicable Law In addition, each
Shareholder shall vote its Equity Shares at any Shareholders Meeting upon any
matter submitted for action by the Shareholders or with respect to which such
Shareholder may vote, in conformity with the specific terms and provisions
of
the Initial Collaboration Agreement.
In
order
to effectuate the provisions of this Agreement, each Shareholder (a) shall
use
its best efforts to cause the Board to adopt, either at a meeting of the Board
or by unanimous written consent of the Board, all the resolutions necessary
to
effectuate the provisions of this Agreement and (b) agrees that when any action
or vote is required to be taken by such Shareholder pursuant to the Initial
Agreements, such Shareholder shall use its commercially reasonable best efforts
to call, or cause the appropriate officer and directors of the Company to call
a
Shareholders Meeting or to execute or cause to be executed a written consent
to
effectuate such action.
23
Financial
Records.
The
Company shall allow each of the Shareholders and its authorized representatives
the right during normal business hours to inspect its books and accounting
records and those of the Subsidiaries, to make extracts and copies there from
at
its own expense and to have full access to all of the Company's and each
Subsidiary's property and assets.
Books
and
Records
The
Company shall, and shall cause the Subsidiaries to, keep proper, complete and
accurate books of account in Rs. and in US dollars in accordance with applicable
accounting standards and shall have their accounts audited annually in
accordance with such standards by a reputable firm of chartered accountants
appointed by the Board as defined in the Collaboration Agreement.
Reports
The
Company shall provide to each Shareholder, in addition to the reports defined
in
the Collaboration Agreement (i) within 30 days after the end of each month,
monthly unaudited consolidated financial statements of the Company for such
month, (ii) such other reports as the Board may determine. The Company shall
furnish to the Shareholders and their auditors such financial and other
information relating to the business of the Company and its Subsidiaries as
any
of them may reasonably request.
Annual
Budgets
The
Company shall prepare a proposed Annual Budget, which shall be submitted to
all
Directors not less than one month prior to the commencement of each Financial
Year. The Board shall adopt the Annual Budget not later than one month of the
commencement of the relevant Financial Year.
Bank
Accounts
The
Parties shall procure that the bank account or bank accounts opened in the
name
of the Company or any Subsidiary with such bank or banks as may be determined
by
the Board, are maintained. Such account or accounts shall be operated as the
Board, or the board of directors of the relevant Subsidiary shall resolve from
time to time. All payments to or by the Company or such Subsidiary shall be
paid
into or withdrawn from such account or accounts.
24
12. REPRESENTATIONS
AND WARRANTIES
Each
Party represents to the other Parties hereto that:
such
Party has the full power and authority to enter into, execute and deliver this
Agreement and to perform the transactions contemplated hereby and that such
Party is duly incorporated or organized and existing under the laws of the
jurisdiction of its incorporation or organization and that the execution and
delivery by such Party of this Agreement and the performance by such Party
of
the transactions contemplated hereby have been duly authorized by all necessary
corporate or other action of such Party;
assuming
the due authorisation, execution and delivery hereof by the other Parties,
this
Agreement constitutes the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganisation, moratorium or similar laws affecting creditors' rights
generally; and
the
execution, delivery and performance of this Agreement by such Party and the
consummation of the transactions contemplated hereby will not (i) violate any
provision of the organizational or governance documents of such Party; (ii)
require such Party to obtain any consent, approval or action of, or make any
filing with or give any notice to, any Governmental Authority in such Party's
country of organization or any other Person pursuant to any instrument, contract
or other agreement to which such Party is a party or by which such Party is
bound [other than the requisite filing to be made by the Company with the
Reserve Bank of India]; (iii) conflict with or result in any material breach
or
violation of any of the terms and conditions of, or constitute (or with notice
or lapse of time or both constitute) a default under, any instrument, contract
or other agreement to which such Party is a party or by which such Party is
bound; (iv) violate any order, judgment or decree against, or binding upon,
such
Party or upon its respective securities, properties or businesses; or (v)
violate any law or regulation of such Party's country of organization or any
other country in which it maintains its principal office.
25
There
are
no legal, quasi-legal, administrative, arbitration, mediation, conciliation
or
other proceedings, claims, actions, governmental investigations, orders,
judgments or decrees of any nature made, existing, or pending or, to the best
knowledge of such Party, threatened or anticipated against such Party which
may
prejudicially affect its holding of Equity Shares or the due performance or
enforceability of this Agreement or any obligation, act, omission or
transactions contemplated hereunder.
Fees
and expenses :
Each
Party shall bear its own fees and expenses, and the Parties will jointly bear
common fees and expenses in connection with the preparation, execution and
performance of this Agreement and the transactions contemplated hereby,
including, without limitation, all fees and expenses of agents, representatives,
counsel and accountants.
13. CONFIDENTIALITY
Each
Party undertakes that it shall not reveal, and shall cause its directors,
officers, managers, partners, members and employees not to reveal, to any third
party any Confidential Information acquired by it or them from or on behalf
of
the Company or any Subsidiary or any other Party or in connection with this
Agreement or any other Basic Document or the transactions contemplated therein,
in each case concerning the organization, business, technology, finance,
transactions or affairs of the Company or its Subsidiaries or any other Party
without the prior written consent of the Company, the relevant Subsidiary or
the
other concerned Parties, as the case may be. The term "Confidential Information"
as used in this Agreement shall mean (a) any information relating to the Company
or its Subsidiaries or any other Party or their respective employees (whether
written, oral or in any other form and whether such information is furnished
before, on or after the date of this Agreement) and (b) information and
materials prepared by the Shareholders or their respective directors, officers,
managers, partners, members, employees or legal, financial or professional
advisors or bankers (collectively, "Representatives") that contain or otherwise
reflect, or are generated from, Confidential Information. The obligation set
forth in this Clause shall continue for a period of two years from the date
of
termination of this Agreement
26
The
provisions of Clause 6.1 shall not apply to:
Confidential
Information or materials that were, are or become generally available to the
public other than as a result of disclosure by or at the direction of the
Shareholders or any of their respective Representatives in violation of this
Agreement;
a
disclosure to legal, financial or professional advisors of any Party subject
to
such Person being bound by confidentiality obligations;
disclosure
under reporting requirements of Stock Exchanges or other relevant
authorities
a
disclosure, after giving prior notice to the other Parties to the extent
practicable under the circumstances and subject to any practicable arrangements
to protect confidentiality, to the extent required under Applicable Law or
judicial or regulatory process or in connection with any judicial process
regarding any legal action, suit or proceeding arising out of or relating to
this Agreement; or
a
disclosure by the Company reasonably necessary in the ordinary course of
business or otherwise in connection with transactions or proposed transactions
of the Company or any Subsidiary.
Upon
any
Shareholder entering into negotiations with any Person with a view to
Transferring any Equity Shares to such Person, information in respect of the
Company or any Subsidiary that is reasonably necessary to permit such Person
to
evaluate the business of the Company or such Subsidiary may be provided to
such
Person, provided that such Person has executed a binding confidentiality letter
in a form approved by the Board; and provided further that if such Person is
involved in a business in competition with that of the Company or any
Subsidiary, the Board may prohibit the disclosure of any such confidential
information as the Board may determine.
Each
Party further agrees to the non-competition period stated in the Collaboration
Agreement.
27
A
Party
shall not, at any time during or after the Non-Competition Period, make any
oral
or written statements which are or could reasonably be interpreted to be of
a
negative or critical nature concerning the Company, any of its affiliates or
its
business.
If
a
Party breaches, or threatens to commit a breach of, any of the provisions of
this Agreement, then the Company and the other Party shall have the right and
remedy to have the covenants contained herein specifically enforced, without
the
need of posting a bond, by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and its stockholders and that money damages
will not provide an adequate remedy to the Company and its stockholders, in
addition to and not in lieu of, any other rights and remedies that are available
at law or in equity. This right and remedy shall exist notwithstanding any
other
provision of this Agreement to the contrary.
14. PUBLICITY
Except
as
required by Applicable Law or by any Governmental Authority or other laws or
regulations applicable to a Party, including but not limited to the disclosing
requirements of the Foreign Promoter and its related Persons, no publicity
release or public announcement concerning the relationship or involvement of
the
Parties shall be made by any Party without advance approval thereof by the
Parties; provided that no disclosure of a Party's identity may be made without
the prior approval of such Party.
15. TERMINATION
Notwithstanding
any provisions of this Agreement, this Agreement shall become effective upon
the
execution hereof by all of the Parties hereto and shall continue in effect
until
the earlier to occur of (a) the conditions set forth in the collaboration
Agreement or waived (as the case maybe) for reasons attributable to the either
party; (b) the date on which the Company goes into liquidation or dissolution
or
any property or assets of the Company are placed in the hands of a receiver,
trust custodian or liquidator or if a winding up order in respect of the Company
is passed; (c) the date on which either party goes into liquidation or
dissolution or their respective properties or assets are placed in the hands
of
a receiver, trust custodian or liquidator or if a winding up order in respect
of
either party , as the case may be, is passed; (d) any date agreed upon in
writing
by all of the Shareholders.
28
If
a
Party materially fails to perform its obligations or to comply with this
Agreement or any provision hereof within a period of 30 days of being provided
written notice of such breach (a "Defaulting Party") This Agreement may be
terminated by the other Party.
16. NOTICES
Unless
otherwise stated, all notices, approvals, instructions and other communications
for the purposes of this Agreement shall be given in writing and may be given
by
email, facsimile, by personal delivery or by sending the same by prepaid
registered mail addressed to the Party concerned at its address stated in the
title of this Agreement or the fax numbers set out below and/or any other
address subsequently notified to the other Parties for the purposes of this
Clause and shall be deemed to be effective (in the case of registered mail)
10
calendar days after posting, (in the case of facsimile) 2 business days after
receipt of a transmission report confirming dispatch or (in the case of personal
delivery) at the time of delivery
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To
: The Company
MORE-GASTECH
(INDIA) PRIVATE LIMITED
having its registered office at 1616, VASTANT KUNJ , NEW DELHI-110070,
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Attn
: Sh ▇.▇.▇▇▇▇▇▇▇
Tel.:
▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Fax.:
▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
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To
: Moregastech
LLC: . having an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇
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Attn
: Attorney ▇▇▇▇▇ ▇▇▇▇▇
Tel.
▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax:
▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
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To
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and others address at ▇-▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ (Haryana)
,
Indian
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Attn
: Sh ▇.▇.▇▇▇▇▇▇▇
Tel.
▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇
Fax
▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇
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29
17. GOVERNING
LAW
This
Agreement shall be governed by and construed in accordance with the laws of
India.
18. DISPUTE
RESOLUTION
Negotiations
The
Parties will attempt in good faith to resolve any Dispute by mutual
consultation. To this extent, upon request of a Party each Party will within
14
days nominate a senior authorised representative with authority to settle the
relevant Dispute. If the Dispute has not been settled through negotiations
within 30 days, then the remaining provisions of this Section will
apply.
Arbitration
Upon
failure of the direct negotiations the Dispute shall be referred to
reconciliation and arbitration.
The
parties shall try to agree on the appointment of the arbitrator. Should the
parties fail in doing so within 15 days from the request by a Party to nominate
such arbitrator, the Parties shall have the right to request the Singapore
Chamber of Commerce to nominate the arbitrator. In such a case the Arbitration
shall be ruled as per the rules framed under the Singapore Chamber of Commerce
and the rules of procedures prescribed for the conduct of the arbitration
therein shall govern the arbitration proceedings.
All
proceedings in any arbitration shall be conducted in English.
In
default of other agreement between the parties, the place of arbitration shall
be Singapore
30
The
arbitrator may award to a Party that substantially prevails on the merits,
its
costs and reasonable expenses (including reasonable fees of its
advisors/counsel). Notwithstanding, the arbitrator will be entitled to allocate
the costs between the Parties on a fairness basis.
During
the pendency of any Dispute, both Parties shall, save as otherwise provided
herein, continue to perform their respective obligations under this Agreement
and shall not, whether by act or omission, impede or otherwise interfere with
the Endeavour’s of the defaulting Party to remedy the breach or default to which
such Dispute relates
19. -VIOLATION
OF TERMS
The
Parties agree that each of the Shareholders shall be entitled to an injunction,
restraining order, right for recovery, suit for specific performance or such
other
equitable relief as a court of competent jurisdiction may deem necessary or
appropriate to restrain the other Shareholder or the Company from committing
any
violation or enforce the performance of the covenants, representations and
obligations contained in this Agreement. These injunctive remedies are
cumulative and are in addition to any other rights and remedies the Shareholders
may have at law or in equity, including without limitation a right for damages.
20. -MISCELLANEOUS
No
Partnership
Nothing
contained in this Agreement shall constitute or be deemed to constitute a
partnership between the Parties, and no Party shall hold himself out as an
agent
for the other Party, except with the express prior written consent of the other
Party.
Indemnification
Subject
to the Companies Act, the Company shall indemnify each Director and each
Shareholder and its directors, officers and agents (collectively, the
“Indemnified Persons”) against any losses, claims, damages, liabilities,
judgments, fines, obligations, expenses and liabilities of any kind or nature
whatsoever (including but not limited to any investigative, legal and other
expenses incurred in connection with, and any amounts paid in settlement of,
any
pending or threatened legal action or proceeding) (collectively “Losses”) that
any Indemnified Person may at any time become subject to or liable for in
connection with claims by third parties by reason of the status of such
Shareholder as shareholder of the Company or of such Director as a director
of
the Company, as the case may be, other than Losses arising from the gross
negligence or willful misconduct of such Indemnified Person.
31
Any
indemnity as referred to in Clause 12 above shall be such as to place the
Indemnified Persons in the same position as it would have been in had there
not
been any such breach.
Time
Any
date
or period as set out in any Clause of this Agreement may be extended with the
written consent of the Parties failing which time shall be of the essence.
Independent
Rights
Each
of
the rights of the Parties hereto under this Agreement are independent,
cumulative and without prejudice to all other rights available to them, and
the
exercise or non-exercise of any such rights shall not prejudice or constitute
a
waiver of any other right of the Party, whether under this Agreement or
otherwise.
Conflict
with the Articles or Collaboration Agreement.
To
the
extent permitted by Applicable Law, in the event of any conflict between the
terms of this Agreement and the Charter Documents of the Company, the provisions
of this Agreement shall prevail and in the event of conflicts with the terms
of
the Collaboration Agreement, the terms of the Collaboration Agreement shall
prevail. The Parties shall take the necessary steps to ensure that the
Organizational Documents are amended to such extent as any Shareholder may
require in order that such conflict be removed.
Counterparts
This
Agreement may be executed in any number of originals or counterparts, each
in
the like form and all of which when taken together shall constitute one and
the
same document, and any Party may execute this Agreement by signing any one
or
more of such originals or counterparts.
32
Party
No Longer a Shareholder
Except
as
otherwise provided in this Agreement, if any of the Parties and its Affiliates
ceases to be a shareholder in the Company in accordance with the provisions
of
this Agreement then as from the date of such cessation, all the rights of such
Party under this Agreement shall forthwith cease and this Agreement may be
varied without reference to (or the need for the signature on any relevant
document of) such Party provided that (for the avoidance of doubt) such
variation shall not give rise to any new or increased liability of such Party,
provided that any liability as already existing shall continue.
Variation
No
variation of this Agreement shall be binding on any Party unless such variation
is in writing and signed by each Party.
No
Assignment
Subject
to the provisions of this Agreement, this Agreement is personal to the Parties
and shall not be capable of assignment, except with the prior written consent
of
the other Party, provided however, that any Shareholder may assign the whole
or
a part of any of its rights in or under this Agreement (including the rights
under this Clause) to an Affiliate of such Shareholder subject to the
fulfillment of all the terms for Transfer, whether in the Initial Agreements
or
the Organizational Documents.
Waiver
No
waiver
of any breach of any provision of this Agreement shall constitute a waiver
of
any prior, concurrent or subsequent breach of the same of any other provisions
hereof, and no waiver shall be effective unless made in writing and signed
by an
authorised representative of the waiving Party.
Headings
The
Clause headings used in this Agreement are intended for convenience only and
shall not be deemed to supersede or modify any provisions.
Severability
If
any
provision of this Agreement is invalid, unenforceable or prohibited by
Applicable Law, this Agreement shall be considered divisible as to such
provision and such provision shall be inoperative and shall not be part of
the
consideration moving from either Party hereto to the other, and the remainder
of
this Agreement shall be valid, binding and of like effect as though such
provision was not included herein.
33
Supersession
Except
as
otherwise agreed among the Parties, the Initial Agreements constitute the entire
agreement of the Parties as to its subject matter and supersedes any previous
understanding or agreement on such subject matter.
IN
WITNESS WHEREOF the
undersigned have executed this Agreement as of the date first above written.
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/s/
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/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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MoreGasTech
India Private Limited
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▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & others
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Moregastech
LLC
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By:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Director
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