SHARE SUBSCRIPTION AGREEMENT AMONG INDIA GLOBALIZATION CAPITAL, INC. AND TECHNI BHARATHI LIMITED AND THE PROMOTERS
Exhibit
10.1
AMONG
AND
TECHNI
▇▇▇▇▇▇▇▇ LIMITED
AND
THE
PROMOTERS
THIS
SHARE SUBSCRIPTION AGREEMENT (this “Agreement”) is made as on
this 16th day of September 2007 BETWEEN:
INDIA
GLOBALIZATION CAPITAL, INC. a company organised under the laws of the
State of Maryland and having its office address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
“Investor”, which expression shall, unless it be repugnant to
the context or meaning thereof, be deemed to mean and include its successors
and
assigns) of the FIRST PART;
AND
TECHNI
▇▇▇▇▇▇▇▇ LIMITED, a company incorporated under the Indian Companies
Act, 1956, having its registered office at By pass road, Edappally, Kochi – 682
024, India (hereinafter referred to as "Company" which
expression shall, unless repugnant to the context or meaning thereof, be deemed
to mean and include its successors) of the SECOND
PART;
AND
THE
PERSONS whose names and addresses are set out in Schedule
1 hereto (hereinafter referred to as "Promoters",
which expression shall, unless repugnant to the context or meaning thereof,
be
deemed to mean and include their heirs, legal representatives, executors, and
administrators) of the THIRDPART.
WHEREAS:
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A.
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The
Company is a public limited company inter alia engaged in the
business of infrastructure development specialising in construction
of
roads over the last two decades (the
“Business”);
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B.
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The
Investor is currently engaged in making investments in India especially
in
sectors such as power, infrastructure, etc. and wishes to make a
foray
into the Business;
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C.
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The
Company has, at the date of this Agreement, an authorised share capital
of
INR 15,00,00,000 consisting of 80,00,000 equity
shares of par value INR 10 each and 70,00,000 15%
redeemable preference shares of par value INR 10 each. As of
date 4287500 Equity Shares have been issued and are held by the persons
in
the number as set out in Schedule 2 A and 5,000,000
convertible preference shares have been issued (“Sale
Shares”);
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D.
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The
Promoters have requested the Investor and the Investor proposes to
invest
in the Company in accordance with the terms and subject to the conditions
of this Agreement.
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NOW
THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED
HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION THE ADEQUACY OF WHICH IS HEREBY
ACKNOWLEDGED, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AND THIS
AGREEMENT WITNESSETH AS UNDER:
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In
this
Agreement, except to the extent that the context requires otherwise the
following terms shall have the meanings set forth below, such meanings to be
applicable to both the singular and the plural forms of such terms:
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(a)
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'Act'
shall mean the Indian Companies Act, 1956 and any amendment thereto
or any
other succeeding enactment for the time being in
force.
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(b)
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‘Affiliate’
means when used in respect of a specified legal person,
each
legal person that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control
with the person specified. In this definition “control” (and its
derivatives) means both (i) holding beneficially more than fifty
per cent
(50%) of equity interests and (ii) the ability to cast more than
fifty
(50%)per cent of the voting rights attaching to voting securities
or (iii)
power to direct the management or policies of such entity by contract
or
otherwise. The term ‘Affiliate’, when used in respect of an individual
party mean such party’s Relative as defined in section 6 of the
Act.
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(c)
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'Agreement'
shall mean this Share Subscription Agreement, as from time to time
amended, supplemented or replaced or otherwise modified and any document
which amends, supplements, replaces or otherwise modifies this Agreement,
together with the recitals and all the Annexes, Appendices and Schedules
attached hereto.
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(d)
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‘Applicable
Law’ shall mean all applicable laws, statutes, ordinances,
regulations, rules, orders, bye laws, administrative interpretation,
writ,
injunction, directive, protocols, codes, policies, notices, directions,
judgment or decree or other instrument or other requirements of any
Governmental Authority in any relevant jurisdiction applicable to
any
Party from time to time.
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(e)
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‘Articles’
means the Articles of Association of the Company to be duly amended
to
reflect the terms of the Shareholders Agreement (as from time to
time
amended, modified or supplemented in accordance with the provisions
thereof) to the extent permitted under
law.
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(f)
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'Authorised
Dealer' shall mean the banker of the
Company.
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(g)
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'Board'
shall mean the board of directors of the
Company.
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(h)
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‘Claim’
includes any notice, demand, assessment, letter or other document
issued
or action taken by any tax, fiscal or other statutory or governmental
authority, body or official whatsoever (whether of India or elsewhere
in
the world) whereby the Company is or may be placed or sought to be
placed
under a liability to make a payment or deprived of any relief, allowance,
credit or repayment otherwise
available.
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(i)
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'Completion'
shall mean completion of the events specified in
Clause4.3 below and the Investor being
registered as a member in respect of the Subscription Shares in the
register of members of Company.
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(j)
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‘Completion
Date' shall mean date mentioned in
Clause4.3
hereof.
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(k)
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‘CPS’
means 1,25,00,000 compulsorily convertible preference shares of the
face
value of INR 10 each with the terms and conditions as listed in
Schedule 5 hereto proposed to be issued by the Company to
the Investor pursuant to the terms of this
Agreement.
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(l)
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‘CPS
Consideration’ means INR 125000000 to be paid by the Investor to
the Company for the CPS.
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(m)
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'Conditions
Precedent' shall mean the conditions precedent mentioned in
Clause 3 of this
Agreement.
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(n)
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‘Derivative
Securities’ means any subscriptions, options, debentures, bonds,
conversion rights, warrants, or similar agreements, Securities or
commitments of any kind obligating the Company to issue, grant, deliver
or
sell, or cause to be issued, granted, delivered or sold (i) any shares
in
the share capital or any derivative securities of the Company; (ii)
any
securities convertible into or exchangeable for any shares in the
share
capital of the Company; (iii) any obligations measured by the price
or
value of the shares in the share capital of the Company; or (iv)
any
rights to participate in the equity or income of the Company or to
participate in or direct the election of any directors or officers
of the
Company.
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(o)
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'Encumbrances'
means any encumbrance, lien, charge, security interest, mortgage,
pledge,
easement, conditional sale or other title retention or non-disposal
agreement or other restriction of a similar kind, and all other easements,
encroachments and title defects of every type and nature, or any
conditional sale, contract, title, retention contract, or other contract
to give or to refrain from giving any of the
foregoing.
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(p)
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‘INR’
means the lawful currency of India.
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(q)
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‘Intellectual
Property’ shall mean all forms of intellectual property rights
subsisting under any law or equity and all analogous rights subsisting
under the laws of all jurisdictions and shall include any product
or
process of the human intellect whether registrable as patents, trade
marks, copyrights, designs or otherwise such as an invention, or
derivative works of the same expression or literary creation, unique
name,
trade secret, business method, database, industrial process, computer
program, source code, process, presentation,
etc.
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(r)
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‘Investor
Shares’ mean 7,15,00,000 Equity Shares proposed to be issued by
the Company to the Investor at the Issue
Price.
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(s)
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‘Investor
Consideration’ means INR 275000000 to be paid by the Investor to
the Company for the Investor
Shares.
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(t)
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‘Issue
Price’ means the price of Rs. 38.46 per Investor
Share.
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(u)
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‘Liabilities’
means any and all contingent, current, deferred or long-term liabilities,
obligations, payables, forms of taxation whether of India or elsewhere
in
the world, past, present and deferred (including, without limitation,
income tax, stamp duty, customs and other import or export duties)
and all
other statutory or governmental impositions, duties and levies and
all
penalties, charges, costs and interest relating to any
Claim.
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(v)
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‘Memorandum’
means the Memorandum of Association of the
Company.
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(w)
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'Party'
shall mean the Investor, the Promoters or the Company referred to
individually and 'Parties' shall mean the Investor, the
Promoters and the Company referred to
collectively.
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(x)
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'Person'
shall include an individual, an association, a corporation, a partnership,
a joint venture, a trust, an unincorporated organisation, a joint
stock
company or other entity or organisation, including a government or
political subdivision, or an agency or instrumentality thereof and/or
any
other legal entity.
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(y)
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'Representations
and Warranties' shall mean the representations and warranties
given by the Company and/or the Promoters in this Agreement, in particular
Clause 5 hereto.
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(z)
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‘Securities’
means, with respect to any person, such person's equity capital,
registered capital, joint venture or other ownership interests (including,
without limitation, in the case of the Company, shares) or any options,
warrants, loans or other securities that are directly or indirectly
convertible into, at or exercisable or exchangeable for, at the sole
option of such person, such equity capital, registered capital, joint
venture or other ownership interests (whether or not such Derivative
Securities are issued by such
person).
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(aa)
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'Shares'
shall mean the equity shares or preference shares of the
Company.
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(bb)
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'Shareholder'
or 'Shareholders' shall mean any Person who holds any
Shares.
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(cc)
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‘Shareholders
Agreement’ means the agreement of even date entered into between
the Promoters, the Company, the Investor in relation to the management
and
governance of the Company on the terms and conditions mentioned
therein.
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(dd)
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‘Subscription
Price’ means an aggregate of the Investor Consideration and the
CPS Consideration.
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(ee)
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‘Subscription
Shares’ means an aggregate of the Investor Shares and the
CPS.
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(ff)
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‘Tax’
or collectively ‘Taxes’ shall mean (i) any and all taxes
imposed by any governmental body, assessments and other governmental
charges, duties, impositions and liabilities, including sales tax,
excise
duties, service tax, wealth tax, dividend tax, value added tax, other
taxes based upon or measured by gross receipts, income, profits,
use and
occupation, ad valorem, transfer, franchise, withholding, payroll,
employment and property taxes, together with all interest, penalties
and
additions imposed with respect to such amounts; (ii) any liability
for the
payment of any amounts of the type described in clause (i) as a result
of
being or ceasing to be a member of an affiliated, consolidated, combined
or unitary group for any period; and (iii) any liability for the
payment
of any amounts of the type described in clause (i) or (ii) as a result
of
any express or implied obligation to indemnify any other Person or
as a
result of any obligations under any agreements or arrangements with
any
other Person with respect to such amounts and including any liability
for
taxes of a predecessor entity or a
transferor.
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(gg)
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‘Transaction
Documents’ shall mean any and all deeds, documents; letters
executed or proposed to be executed between the Parties to achieve
Completion, including this Agreement and the Shareholders
Agreement.
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(hh)
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‘Warrantors’
means the Company and the Promoters and ‘Warrantor’ means
any one of them.
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1.2
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Other
Defined Terms:
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(i)
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‘Business
Days’ means the days on which the banks are open for business
in
Mumbai, India.
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(ii)
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‘Dispute’
shall have the meaning as ascribed to it in Clause 10.1
of this Agreement.
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(iii)
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‘Losses’
shall have the meaning as ascribed to it in Clause 6.1 of
this Agreement.
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1.3
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Interpretation
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1.3.1
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The
terms referred to in this Agreement shall, unless defined otherwise
or
inconsistent with the context or meaning thereof, bear the meaning
ascribed to it under the relevant
statute/legislation.
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1.3.2
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All
references in this Agreement to statutory provisions shall be construed
as
meaning and including references
to:
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(a)
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Any
statutory modification, consolidation or re-enactment (whether before
or
after the date of this Agreement) for the time being in
force;
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(b)
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All
statutory instruments or orders made pursuant to a statutory provision;
and
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(c)
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any
statutory provisions of which these statutory provisions are a
consolidation, re-enactment or
modification.
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1.3.3
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Words
denoting the singular shall include the plural and words denoting
any
gender shall include all genders.
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1.3.4
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Headings
to clauses, sub-clauses and paragraphs are for information only and
shall
not form part of the operative provisions of this Agreement or the
Schedules and shall be ignored in construing the
same.
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1.3.5
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References
to recitals, clauses or schedules are, unless the context otherwise
requires, are references to recitals, to clauses of or schedules
to this
Agreement.
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1.3.6
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Reference
to days, months and years are to Gregorian days, months and calendar
years
respectively.
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1.3.7
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Any
reference to the words “hereof,” “herein”, “hereto” and “hereunder” and
words of similar import when used in this Agreement shall refer to
clauses
or annexures of this Agreement as specified
therein.
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1.3.8
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Any
expression importing a natural person includes any company, trust,
partnership, joint venture, association, body corporate or governmental
agency.
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1.3.9
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Where
a word or phrase is given a defined meaning, another part of speech
or
other grammatical form in respect of that word or phrase has a
corresponding meaning.
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1.3.10
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Reference
to “Investor”, unless repugnant to the context shall for the purpose of
this Agreement, mean and include the Affiliates of the
Investor.
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1.5.11
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The
words “include” and “including” shall be construed without
limitation.
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1.5.12
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The
rule of construction, if any, that a contract should be interpreted
against the Party responsible for the drafting and preparation thereof,
shall not apply to this Agreement.
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2.
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SUBSCRIPTION
ON COMPLETION DATE
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2A. SUBSCRIPTION ON COMPLETION DATE
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2.1
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Subject
to the terms of this Agreement, and relying on the Representations
and
Warranties and the indemnities given by the Promoters and the Company
under this Agreement, the Investor agrees on the Completion Date
to
subscribe for and the Company agrees to issue and allot to the Investor
the Subscription Shares in consideration of the Subscription
Price.
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2.2
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The
Subscription Shares shall be issued free from all Encumbrances and
together with all rights, title and interests now or hereafter attaching
thereto. The Subscription Shares shall in accordance with Applicable
Laws
and as the context may require, rank pari passu with all the
existing Shares of the Company.
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3.
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CONDITIONS
PRECEDENT
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3.1
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The
Parties agree that the obligation of the Investor to subscribe to
the
Subscription Shares in the manner provided herein, is conditional
upon (i)
the fulfilment of the following conditions to the satisfaction of
the
Investor, unless specifically waived in writing by the Investor;
and (ii)
only if all the Representations and Warranties continue to be true
and
correct on the Completion Date:
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3.1.1
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The
passing by the Board, in accordance with the Act and the Articles,
of
resolutions approving, initialling and
authorizing:
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a)
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the
execution of the Transaction Documents and the performance of the
transactions contemplated therein;
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b)
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the
draft of the amendments to the Memorandum and Articles of Association
of
the Company, to reflect, to the extent permitted by law, the provisions
of
the Shareholders Agreement, in the form approved by the Investor,
subject
to obtaining approval of the shareholders of the
Company;
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c)
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the
issue of the Subscription Shares pursuant to the terms of this
Agreement;
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d)
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the
approval of the resignation of ▇▇. ▇.▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ and
▇▇. ▇.
▇▇▇▇▇▇ from the Board;
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3.1.2
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Execution
of the Shareholders Agreement;
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3.1.3
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Completion
of a business, financial, accounting, tax, technical, legal and regulatory
due diligence on the Company by the Investor and resolution of all
issues
arising therefrom to the satisfaction of the Investor on or before
45
Business Days from the date of this
Agreement;
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3.1.4
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A
resolution being passed at a duly constituted meeting of the board
of
directors of Investor and a resolution being passed at duly constituted
meeting of the shareholders of the Investor, approving the subscription
to
the Subscription Shares and the satisfaction of all other conditions
for
the Investor to effect a Business Combination as set forth in the
Investor's Prospectus dated March 3, 2006 as filed with the US Securities
and Exchange Commission;
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3.1.5
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The
Promoters obtaining written consents from all banks, financial
institutions, lenders of the Company and all other third parties
as may be
required for change in shareholding of the Company in form and substance
satisfactory to the Investor;
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3.1.6
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There
shall not have been any change, effect or circumstance from the
date hereof to the Completion Date, which has or may reasonably be
expected to have an adverse effect on the Company, the Company’s
prospects/profits/profitability/financial position/ financial condition/
operations/businesses/ assets and/or the
Business;
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3.1.7
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Providing
details of the bank account of the Company maintained with the Authorised
Dealer to the Investor for the purpose of receiving the Subscription
Price
under this Agreement;
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3.1.8
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The
Parties obtaining all statutory consents and approvals required or
desirable under any and all applicable laws and regulations (i) for
the
subscription, issue and allotment of the Subscription Shares pursuant
to
the terms of this Agreement; and (ii) to give effect to the transactions
contemplated herein and under the Transaction Documents having been
obtained and remaining in full force and
effect;
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3.1.9
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Each
of the Promoters delivering to the Investor a no-objection certificate
in
the form contained in Schedule 4 hereto and a no-objection certificate
from the Company in the form contained in Schedule 4A
hereto;
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3.1.10
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Investor
receiving from the Promoters and the Company three year financial
statements for the period ended March 31, 2007, March 31, 2006 and
March
31, 2005 converted into US GAAP and audited by a Public Company Accounting
Oversight Board (▇▇▇.▇▇▇▇▇.▇▇▇) and unaudited US GAAP financial statements
for the period commencing April 1, 2007 and ending September 30,
2007 or
as of such later period, which shall not be earlier than 7 days prior
to
the Completion Date;
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3.1.11
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The
purchase of the Sale Shares by the Investor and the incorporation
of the
name of the Investor in the register of members in respect to the
Sale
Shares.
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3.2
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Upon
fulfilment of the Conditions Precedent, the Promoters and the Company
shall notify the Investor of the same in
writing.
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3.3
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If
the Conditions Precedent mentioned in Clause 3.1.3 above
is not fulfilled or satisfied to the satisfaction of the Investor
or
waived in writing by the Investor within 45 days of the date of this
Agreement or such other date as may be mutually agreed between the
Parties
in writing, the Investor shall have the right to terminate this Agreement
forthwith. The termination of this Agreement shall not in any way
affect
or prejudice any right accrued to any Party against the other prior
to
such termination. The Promoters however hereby confirm, undertake
and
agree, that they shall cause the Company to provide to the Investor
and/or
its advisors, all relevant information relating to the Company, including
accounting, financial, tax, marketing, technical, human resources
and
legal information, whether or not requested by the Investor and/or
its
advisors, latest by the completion of 45 days from the date of this
Agreement. The Promoters acknowledge and confirm that the Investor
and/or
its advisors shall be entitled to request for any information that
they
deem necessary and material in relation to the Company for the purpose
of
conducting the due diligence exercise. The Promoters shall provide
full
and complete access to the Investor and/or its advisors to all of
the
records, facilities, employees, suppliers and customers of the Company,
along with answers and clarifications to questions raised by the
Investor
and/or its advisors and will cooperate fully with them in the completion
of the due diligence exercise. The Parties acknowledge and confirm
that
the quantum and payment of the Subscription Price for the Subscription
Shares shall be subject to the satisfactory results of the due diligence
exercise to be conducted by the Investor, at the sole satisfaction
of the
Investor and in the event, the Investor is not satisfied with the
results
of the due diligence exercise conducted by the Investor but has waived
the
requirement of the Condition Precedent mentioned in Clause 3.1.3
above, the Parties shall mutually agree on a revised Subscription
Price.
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3.4
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The
Promoters and the Company undertake to use all best efforts to ensure
that
all the Conditions Precedent are satisfied as soon as possible and
the
Condition Precedent as mentioned in Clause 3.1.3 is
satisfied no later than the date mentioned in Clause 3.3
above.
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3.5
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The
Promoters and the Company shall co-operate and provide all information
and
reasonable assistance to the Investor and/or its advisors and authorised
representatives to enable them to verify the records/documents of
the
Company.
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4.
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COMPLETION
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4.1
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The
Promoters and the Company shall notify the Investor of the fulfilment
of
the Conditions Precedent and provide to the Investor, all the requisite
documents evidencing fulfilment of such Conditions Precedent applicable
to
the Promoters and/or the Company. The Investor through its
advisors/counsel shall then satisfy itself as to the fulfilment of
the
Conditions Precedent. The Investor shall notify the Promoters and
the
Company within 7 days from the date of receipt of all the
documents/information from the Promoters of its satisfaction or
dissatisfaction with the same or of waiving the fulfilment of any
of the
Conditions Precedent applicable to the Promoters and/or
Company.
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4.2
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In
case the Investor notifies the Promoters or the Company of its
dissatisfaction under Clause 4.1 above, the Promoters
shall fulfil the unfulfilled Conditions Precedent within 7 days of
receipt
of such notice and shall provide to the Investor, all requisite documents
evidencing fulfilment of that Condition Precedent. Subject to Clause
3.3
above, the procedure referred to in Clause 4.1 above
shall be followed thereafter until the fulfilment of all Conditions
Precedent applicable to the Promoters and/or Company, to the satisfaction
of the Investor.
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4.3
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Upon
fulfilment of all the Conditions Precedent to the satisfaction of
the
Investor or if specifically waived in writing by the Investor, the
Parties
shall proceed to complete the issue of the Subscription Shares to
the
Investor (‘Completion’) in the manner provided
in this Clause. Such Completion shall take place on a date set by
the
Investor (the ‘Completion Date’), which date shall not be
later than 15 days from the fulfilment of all the Conditions Precedent
to
the satisfaction of the Investor. This date may however be extended
upon
mutual agreement between the
Parties.
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4.4
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The
Completion shall take place at the office of Economic Laws Practice,
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ -
▇▇▇▇▇▇.
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4.5
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On
the Completion Date, the Company shall deliver or cause to be delivered
to
the Investor:
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a)
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certified
true copies of the Board Resolutions referred to in clause
3.1.1;
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b)
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written
confirmation from the Company and each of the Promoters that as at
the
Completion Date:
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•
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no
change, effect or circumstance has occurred, which has or may reasonably
be expected to have an adverse effect on the Company, the Company’s
prospects/profits/profitability/financial position/ financial condition/
operations/businesses/ assets and/or the operations/businesses and/or
the
Business; and
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•
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the
Representations and Warranties are true, accurate and complete and
that it
is not aware of any matter or thing which is in breach of or inconsistent
with any of the Representations and
Warranties;
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c)
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the
no-objection certificates referred to in clause
3.1.9.
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4.6
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Immediately
thereafter, a meeting of the Board shall be held at which, the Board
shall
pass resolutions:
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(i)
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approving
the allotment of the Subscription Shares to the Investor with the
corresponding certificates;
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|
|
(ii)
|
approving
the appointment of the directors, as specified by the Investor on
the
Board; and
|
|
|
(iii)
|
convening
an extra-ordinary general meeting of the Company in accordance with
the
Articles of the Company to amend the Memorandum and Articles of the
Company to incorporate the provisions of the Shareholders Agreement
in the
form approved by the Board under Clause 3.1.1(b) above and to approve
the
issue of the Subscription Shares to the Investor pursuant to section
81(1A) of the Act.
|
|
4.7
|
Immediately
thereafter, a meeting of the shareholders shall be held at short
notice,
at which the following resolutions shall be
passed:
|
(i) approving
the allotment of the Subscription Shares to the Investor;
|
|
(ii)
|
approving
the amendments to the Memorandum and Articles of Association in the
form
approved by the Board under Clause
3.1.1(b).
|
|
4.8
|
Immediately
thereafter the Company shall (i) issue and deliver to the authorised
representative of the Investor the original certificates duly stamped,
signed and sealed for the Subscription Shares subscribed to by the
Investor; and (ii) incorporate the name of the Investor as the legal
and
beneficial owner of the Subscription Shares in the register of members
of
the Company.
|
|
4.9
|
Notwithstanding
the above, on the Completion Date the Investor shall also have a
right to
review the books and accounts of the Company to verify to the satisfaction
of the Investor, that no event has occurred which has or may have
an adverse effect on the Business, operations, financial
condition or prospects of the Business. In the event, the Investor
is not
satisfied with the results of its review; the Investor shall have
the
right to terminate this Agreement forthwith. The termination of this
Agreement shall not in any way affect or prejudice any right accrued
to
any Party against the other prior to such
termination.
|
|
4.10
|
On
the Completion Date the Investor
shall:
|
|
|
a)
|
deliver
an application in writing for the Subscription Shares to be subscribed
by
them on the Completion Date; and
|
|
|
b)
|
pay
to the Company the Subscription Price by way of telegraphic
transfer.
|
|
4.11
|
Immediately
after subscription to the Subscription Shares by the Investor, the
equity
shareholding of the Company shall be as set out in Schedule
2B.
|
|
4.12
|
The
Parties to this Agreement agree to take all measures that may be
required
to ensure to the extent possible, that all the events contemplated
in
Clause 4 above on the Completion Date are completed on
the same day.
|
|
4.13
|
Notwithstanding
the provisions of Clause 4.12 hereto, all proceedings to
be taken and all documents to be executed and delivered by the Parties
at
Completion shall be deemed to have been taken and executed simultaneously
to the extent possible and no proceedings shall be deemed to have
been
taken nor documents executed or delivered until all have been taken,
executed and delivered.
|
|
4.14
|
Immediately
after the Board meetings of the Company and passing of the resolutions
mentioned above, the Parties shall ensure that the Company shall
record
the necessary entries in its registers and carry out all the actions
that
have been resolved to be carried out in order to effectively achieve
Completion.
|
|
4.15
|
The
Company shall ensure that within 30 days from the Completion Date,
the
relevant forms of the Company are filed with the concerned regulatory
authorities including the Registrar of Companies, Reserve Bank of
India,
etc. in accordance with the provisions of Applicable
Law
|
|
4.16
|
Investor’s
Remedy
|
|
4.16.1
|
If
after having received the Subscription Price from the Investor pursuant
to
Clause 4.10 above, the provisions of this Clause 4 are not complied
with
by the Company and/or the Promoters on the Completion Date, the Investor
shall have the right to obligate the Company and/or the Promoters
and if
so required, by the Investor, the Company and/or the Promoters shall
forthwith refund to the Investor the Subscription Price received
from the
Investor pursuant to Clause 4.10 above together with interest thereon
calculated at the rate of the then applicable State Bank of India
prime
lending rate (“SBI PLR”) plus 10% from the date the Investor paid the
Subscription Price to the date of actual refund by the Company with
interest (“Liquidated Damages”). The Parties agree and acknowledge that
the Liquidated Damages is a genuine pre estimate of the loss that
may be
suffered by the Investor as a result of non-compliance by the Company
and/
or the Promoters of the obligations specified in this
Agreement.
|
|
4.16.2
|
The
Parties agree and acknowledge that this obligation of the Company
to
refund the Subscription Price to the Investor shall be without prejudice
to any other right, which the Investor may have under this Agreement
and
in law or in equity.
|
|
5.1
|
True
and Accurate: The Warrantors represent, warrant and
undertake to the Investor, that each of the statements set out in
this
Clause and Schedule 3 hereof, as applicable to the Warrantors, is
now and
will be true and accurate at the Completion Date. The Warrantors
acknowledge that the Investor, in entering into this Agreement, is
relying
on such representations, warranties and undertakings and shall be
entitled
to treat the same as conditions of the
Agreement.
|
|
5.2
|
Investor
Representation:The Investor hereby represents and warrants that it has
the corporate power and authority to execute, deliver and perform
this
Agreement and the Transaction Documents and the transactions contemplated
herein. The execution, delivery and performance by Investor of the
Transaction Documents have been duly authorized and approved by its
board
of directors.
|
|
5.3
|
Separate
and Independent: Each of the Representations and Warranties
shall be separate and independent and, save as expressly provided
to the
contrary, shall not be limited by reference to or inference from
any other
Representations and Warranty or any other term of this Agreement,
which is
not expressly referenced to the Representations and Warranty
concerned.
|
|
5.4
|
Knowledge:
If any Representation or Warranty is qualified by knowledge, then
it means
that the Representation or Warranty has been made to the best knowledge
of
the Warrantors, after the Warrantors have made and caused to be made
such
due and proper inquiries as may be required in respect of the relevant
matter to obtain informed
knowledge.
|
|
5.5
|
Undertaking: None
of the Warrantors shall do, allow or procure any act or omission
before
the Completion Date which would respectively constitute a breach
of any of
the Representations and Warranties if they were given at the Completion
Date, or which would make any of the Representations and Warranties
inaccurate or misleading if they were so
given.
|
|
5.6
|
Notification
of breach: Each of the Warrantors hereby agree to disclose
promptly to the Investor in writing immediately upon becoming aware
of the
same, any matter, event or circumstance (including any omission to
act)
which may arise or become known to it after the date of this Agreement
which:
|
|
|
5.6.1
|
would
render any of the Representations and Warranties to be inaccurate;
or
|
|
|
5.6.2
|
has,
or is likely to have, an adverse effect on the financial
position/prospects/profits/profitability/financial condition/
operations/businesses/ assets and/or the Business of the
Company.
|
|
5.7
|
Survival: The
Representations and Warranties provided in this Agreement shall survive
the Completion Date.
|
|
5.8
|
The
Company and the Promoter hereby agree and acknowledge that the Investor
has agreed to subscribe to the Subscription Shares inter alia
relying upon the Representations and
Warranties.
|
6. INDEMNITY
|
6.1
|
Without
prejudice to any other right available to the Investor in law or
under
equity, the Promoters shall jointly and severally indemnify, defend
and
hold harmless the Investor, their Affiliates, directors, advisors,
officers, employees and agents, or, if so desired by the Investor,
the
Promoters shall indemnify the Company, from and against any and all
liabilities, damages, demands, Claims (including third party Claims),
actions, judgments or causes of action, assessments, interest, fines,
penalties, and other costs or expenses (including, without limitation,
amounts paid in settlement, court costs and all reasonable attorneys'
fees
and out of pocket expenses) (“Losses”) directly based
upon, arising out of, or in relation to or otherwise in respect
of:
|
|
i.
|
any
inaccuracy in or any breach of any Representation and Warranty, covenant
or agreement of the Promoters or Company contained in this Agreement
or
any document or other papers delivered by any of them to the Investor
in
connection with or pursuant to this
Agreement;
|
|
ii.
|
any
liability arising out of non compliance of any obligation undertaken
by
the Company or the Promoters;
|
|
iii.
|
any
liabilities and obligations of whatever nature relating to any litigation,
Claim or governmental investigation pending or relating to the Business
or
operations of the Promoters or the Business of the Company prior
to the
date of execution of this Agreement and as on the Completion
Date;
|
|
iv.
|
any
liability due to any non-compliance of any applicable law, rules
or
regulations prior to the date of execution of this Agreement and
as on the
Completion Date.
|
|
6.2
|
Any
compensation or indemnity as referred to in Clause 6.1 above shall
be such
as to place the Investor in the same position as it would have been
in,
had there not been any such breach and as if the Representation and
Warranty under which Investor is to be indemnified, had been
correct.
|
7. ACCESS
TO BOOKS AND RECORDS
|
7.1
|
The
Investor and/or the Promoters and their designated officers, employees,
accountants and attorneys shall have the right, at any time and from
time
to time during normal business hours and upon notice which may be
of at
least 3 (three) days, to carry out inspection of documents, records,
premises and all other properties of the Company at their own cost
as long
as they hold any Shares in the
Company.
|
|
7.2
|
The
Investor and their designated officers, employees, accountants and
attorneys shall have the right to consult with the officers, employees,
accountants and attorneys of the Company for the purpose of affording
the
Investor full opportunity to make such investigation as it may desire
and
to collect such information, data, documents, evidence as may be
required
for the purpose of and in the course of such inspection in connection
therewith. Such investigations and/or audit, however, shall not affect
the
Representations and Warranties made by the Promoters or the
Company.
|
|
8.
|
INTERIM
MANAGEMENT AND ACCESS
|
|
8.1
|
During
the period beginning from the execution of this Agreement and continuing
until the Completion Date, the Company shall, and the Promoters shall
cause the Company to carry on its Business in the usual, regular
and
ordinary course in substantially the same manner as heretofore conducted,
to pay its debts and Taxes when due, to pay or perform other obligations
when due, and, to the extent consistent with such businesses, to
use its
best efforts consistent with past practice and policies to preserve
intact
their present business organizations, keep available the services
of their
present officers and employees and preserve their relationships with
customers, suppliers, distributors, licensors, licensees and others
having
business dealings with them, all with the goal of preserving their
goodwill and ongoing businesses at the Completion
Date.
|
|
8.2
|
The
Promoters shall cause the Company to provide the Investor and its
officers, agents, advisors, consultants and other representatives
reasonable access to (i) all of the properties, books, contracts,
commitments and records of the Company, (ii) all other information
concerning the Business, properties and personnel (subject to restrictions
imposed by Applicable Law) of the Company as the Investor may request,
and
(iii) all employees of the Company. The Promoters shall cause the
Company
to provide such information within 5 days of making a request for
the
same.
|
|
8.3
|
During
the period beginning from the execution of this Agreement and continuing
until the Completion Date the Company and/or the
Promoters (including their respective Affiliates,
representatives and/or advisors) shall not, without the prior written
consent of the Investor:
|
|
(i)
|
solicit,
encourage, entertain, initiate or participate in any inquiry, negotiations
or discussions or disclose any information pertaining to the Company
or
enter into any agreement with respect to any offer or proposal to,
acquire
or merge or restructure (including through business transfer, asset
transfer, amalgamation, demerger, hiving off or in any other manner
whatsoever) or dispose off, alienate or Encumber any assets or business
of
the Company or parts thereof (an ‘Acquisition
Proposal’);
|
|
(ii)
|
assist
or cooperate with any Person to make any Acquisition Proposal;
or
|
|
(iii)
|
solicit,
negotiate or enter into any agreement with any Person with respect
to an
Acquisition Proposal;
|
|
(iv)
|
In
the event the Company or the Promoters receive, prior to the Completion
Date, any Acquisition Proposal, the Company or the Promoters receiving
such Acquisition Proposal shall immediately suspend any discussions
with
such offeror or party with regard to such Acquisition Proposal and
immediately inform the Investor as to any such Acquisition Proposal,
including information as to the principal terms of such Acquisition
Proposal or request, as the case may be, and any other information
that
the Investor may request;
|
|
(v)
|
sell,
license or transfer to any Person any rights to any Intellectual
Property
or enter into any agreement with respect to Intellectual Property
with any
Person;
|
|
(vi)
|
amend
or change its Articles of Association and/or Memorandum of Association
in
any manner whatsoever;
|
|
(vii)
|
adopt
or change accounting methods or practices other than as required
by the
Indian GAAP or revalue any of its assets, including writing down
value of
inventory or writing off notes or accounts
receivable;
|
|
(viii)
|
issue,
sell, or grant, contract to issue, sell or grant, or authorize the
issuance, delivery, sale or purchase of any Securities of the Company
or
any other securities, including securities convertible into, or
exercisable or exchangeable for Shares in the
Company;
|
|
(ix)
|
declare,
set aside or pay any dividends on or make any other distributions
(whether
in cash, stock or property) in respect of any shares of the Company,
or
split, combine or reclassify any shares of the Company, or issue
or
authorize the issuance of any other securities in respect of, in
lieu of
or in substitution for shares of the Company or repurchase, redeem,
or
otherwise acquire, directly or indirectly, any shares of the Company
(or
options, warrants or other rights convertible into, exercisable or
exchangeable therefore);
|
|
(x)
|
grant
any severance or termination, pay (cash, equity or otherwise) to
any
director or officer or to any employee of the Company, or increase
(by way
of cash, equity or otherwise) the salary or other compensation payable
or
to become payable by the Company to any of their officers, directors,
employees or advisors, or declare, pay or make any commitment or
obligation of any kind for the payment (in the form of cash, equity
or
otherwise) by the Company of a bonus or other additional salary or
compensation to any such Person, or adopt or amend any employee benefit
plan (except as necessary to comply with applicable law) or enter
into any
agreement with any Person which guarantees employment with the Company
for
a specific period of time or enter into any settlement or compromise
agreement with any employees of the
Company;
|
|
(xi)
|
waive
any share repurchase rights, accelerate, amend or change the period
of
exercisability of options or restricted shares, or reprice options
granted
to any employee, consultant, director or other stock plans or authorize
cash payments in exchange for any options granted under any employment
stock option plans;
|
|
(xii)
|
sell,
lease, license, Encumber or otherwise dispose off any of the assets
or
properties of the Company;
|
|
(xiii)
|
enter
into/agree to enter into any new contract not in the ordinary course
of
business and/or on terms that are beyond normal and reasonable commercial
terms including amending or otherwise modifying (or agreeing to do
so), or
violating the terms of any of the contracts entered into by the
Company;
|
|
(xiv)
|
commence,
compromise or settle any pending or threatened litigation, debt or
other
legal proceedings;
|
|
(xv)
|
make
or change any election in respect of Taxes, adopt or change any accounting
method in respect of Taxes, enter into any closing agreement, settle
any
Claim or assessment in respect of Taxes, or consent to any extension
or
waiver of the limitation period applicable to any Claim or assessment
in
respect of Taxes;
|
|
(xvi)
|
cause
any increase in liabilities of the Business including by way of incurring
any indebtedness in the Business in the form of loans or financial
assistance from any lending agency or bank or repaying or incurring
any
additional indebtedness or making any advance payments other than
what has
been contractually agreed upon (upon disclosure and consent to/of
the
Investor);
|
|
(xvii)
|
amending
any terms of any agreement with any of the
creditors/debtors;
|
|
(xviii)
|
enter
into/agree to enter into any new contract, agreement, arrangement
with any
related party of the Company;
|
|
(xix)
|
undertake
any expenditure, transaction or commitment other than in the
normal course of business; or
|
|
(xx)
|
take
or agree in writing or otherwise to take any of the actions described
in
the preceding clauses of this Clause 8 or any other
action that would prevent the Company from performing or cause the
Company
not to perform its covenants hereunder or that would prejudice the
consummation of any of the transactions contemplated in the Transaction
Documents.
|
9. CO-OPERATION
The
Parties shall use their reasonable efforts to ensure that the transactions
contemplated by this Agreement are consummated as per the terms hereof,
including without limitation, obtaining all approvals from the applicable
government and/or regulatory authorities and other Persons as may be necessary
or reasonably requested by Investor in order to consummate the transactions
contemplated by this Agreement.
10. RESOLUTION
OF DISPUTES
|
|
Amicable
Settlement
|
|
10.1
|
If
any dispute arises between Investor and/or the Promoters and/or Company
during the subsistence of this Agreement or thereafter, in connection
with
the validity, interpretation, implementation or alleged breach of
any
provision of this Agreement or regarding a question, including the
question as to whether the termination of this Agreement by one Party
hereto has been legitimate (“Dispute”), the disputing
Parties hereto shall endeavour to settle such Dispute amicably. The
attempt to bring about an amicable settlement shall be considered
to have
failed if not resolved within 60 days from the date of the
Dispute.
|
|
|
Conciliation
|
|
10.2
|
If
the Parties are unable to amicably settle the Dispute in accordance
with
Clause 10.1 within the period specified therein, the
Parties shall forthwith but not later than 30 days after expiry of
the
aforesaid period, refer the Dispute to Mr. Ram ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ for resolution of the said Dispute. The attempt to bring about
such
resolution shall be considered to have failed if not resolved within
30
days from the date of receipt of a written notification in this
regard.
|
|
|
Arbitration
|
|
10.3
|
If
the Parties are unable to amicably settle the Dispute in accordance
with
Clause 10.2 within the period specified therein, any
Party to the Dispute shall be entitled to serve a notice invoking
this
Clause and making a reference to an arbitration panel of three
arbitrators. Each party to the dispute shall appoint one arbitrator
within
30 days of receipt of the notice of the Party making the reference,
and
the two arbitrators, so appointed shall appoint a third
arbitrator. The Arbitration proceedings shall be held in
accordance with the Arbitration and Conciliation Act, 1996. The decision
of the arbitration panel shall be binding on all the Parties to the
Dispute.
|
10.4 The
place of the arbitration shall be Mumbai, India.
10.5 The
arbitration proceedings shall be governed by the laws of India.
10.6
The proceedings of arbitration shall be in the English
language.
|
10.7
|
The
Arbitrator’s award shall be substantiated in writing. The court of
arbitration shall also decide on the costs of the arbitration proceedings.
The cost of arbitration shall be borne by the
Company.
|
|
10.8
|
The
award shall be binding on the Parties subject to the Applicable Laws
in
force and the award shall be enforceable in any competent court of
law.
|
|
10.9
|
The
Mumbai court (including any appellant court) in India shall have
exclusive
jurisdiction.
|
11. NOTICES
|
11.1
|
Any
notice or other communication that may be given by one Party to the
other
shall always be in writing and shall be served either by (i) hand
delivery
duly acknowledged; or (ii) sent by registered post with acknowledgment
due; or (iii) by facsimile at the respective addresses set out herein
below or at such other address as may be subsequently intimated by
one
party to the other in writing as set out herein. If the notice is
sent by
facsimile, the said notice shall also be sent by registered post
acknowledgment due.
|
The
Investor: Ram ▇▇▇▇▇▇▇
Address: At
the address mentioned above
Tel: ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: +
1 240 465 0273
The
Company: Techni ▇▇▇▇▇▇▇▇ Ltd.
Address: As
mentioned above
Tel:
Facsimile:
The
Promoter: Jortin Antony
Address: As
mentioned in Schedule 1 hereto
Tel:
Facsimile:
|
11.2
|
All
notices shall be deemed to have been validly given on (i) the business
date immediately after the date of transmission with confirmed answer
back, if transmitted by facsimile transmission, or (ii) the business
date
of receipt, if sent by courier or hand delivery; or (iii) the expiry
of
seven days after posting, if sent by registered
post.
|
|
11.3
|
Any
Party may, from time to time, change its address or representative
for
receipt of notices provided for in this Agreement by giving to the
other
Party not less than 10 days prior written
notice.
|
12. TERM
This
Agreement shall come into effect and force and be binding on the Parties from
the date first written above and shall remain in full force unless terminated
in
accordance with the provisions of this Agreement.
13. CONFIDENTIALITY
|
13.1
|
The
Parties recognise that each of them will be given and have access
to
confidential and proprietary information of the other Parties. The
Parties
undertake not to use any of such confidential information for their
own
corporate purposes without the prior written consent of the Party
owning
such information and shall keep confidential and not to disclose
to any
third party any of the other Parties’ confidential and proprietary
information for a period of one year from the date hereof. The Parties
shall also cause their respective directors, employees, officers
and any
other persons to whom the above mentioned information is disclosed
to
execute a letter of confidentiality to the effect provided in this
Clause.
The obligations of confidentiality shall not apply to any information
that:
|
(a) was
developed independently by the Parties;
|
|
(b)
|
was
known to the Party prior to its disclosure by the disclosing
Party;
|
|
|
(c)
|
has
become generally available to the public (other than by virtue of
its
disclosure by the receiving Party);
|
|
|
(d)
|
may
be required in any report or statement that is required to be submitted
by
the Company to any governmental or regulatory
body;
|
|
|
(e)
|
may
be required in response to any summons or subpoena or in connection
with
any litigation; or
|
|
|
(f)
|
was
approved by both the Parties (for the avoidance of doubt, disclosure
to
the Affiliates of the Investor shall be
permitted);
|
|
|
(g)
|
is
required by a regulatory authority or the regulations of any recognized
stock exchange including the reporting requirements of the Investor
to
SEC;
|
|
|
(h)
|
is
reasonably required for disclosure to professional advisers of the
Party,
who shall have given undertakings of strict
confidentiality;
|
|
|
(i)
|
may
be required to comply with any law, order, regulation or ruling applicable
to any Party hereto.
|
Provided
that prior to any disclosure in respect of a request to disclose confidential
information under subsections (d), (e) (g), (h) and (i), above a Party must
first notify the Party owning such confidential information, who shall then
have
the opportunity to respond to and/or dispute such request. The provisions of
this Clause shall survive the termination of this Agreement.
|
13.2.
|
Upon
termination of this Agreement, the Parties shall cause the Company
to
either (i) return to the Investor and Promoters, as applicable, and
the
Parties shall return to each other, all documents and information
belonging to such Person and all copies thereof in the possession
or under
the control of a Party which does not own such property, and all
confidential information in whatever media; or (ii) destroy all documents
and information belonging to the other Party and all copies thereof
in the
possession or under the control of a Party. Provided that the Investor
and/or its advisors may retain, in a secure location, copies of such
documents and records for purposes of defending any legal proceeding
or as
is required to be maintained in order to satisfy any law, rule,
regulation, or accounting or financial reporting standards to which
the
Investor may be subject.
|
|
13.3.
|
The
Parties acknowledge and agree that the covenants and obligations
with
respect to confidentiality set forth in this Clause relate to special,
unique and extraordinary matters, and that a violation of any of
the terms
of such covenants and obligations will cause the Company and the
owner of
such property irreparable injury for which adequate remedies are
not
available at law. Therefore, the Parties agree that the Party entitled
to
enforce the covenants set forth above, shall be entitled to an injunction,
restraining order or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain the other
Party
from committing any violation of the covenants and obligations contained
in this Clause. These injunctive remedies are cumulative and are
in
addition to any other rights and remedies the concerned Party may
have at
law or in equity.
|
|
14.
|
AUTHORISED
PERSON
|
For
the
purposes of this Agreement, Mr. Jortin Antony shall represent the Promoters.
Accordingly, all the Promoters hereby authorise Mr. Jortin Antony to represent
the Promoters and take any decision which may be required to be taken, do all
acts and execute all documents which are or may be required by the Promoters
for
the proper and effective fulfilment of the rights and obligations under this
Agreement. Any action taken or deed performed or document executed by Mr. Jortin
Antony shall be deemed to be acts or deeds done or documents executed by all
the
Promoters, and shall be binding on all the Promoters.
15. TERMINATION
|
15.1
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Grounds
for Termination: Save and except the rights and obligations of the
Parties
that terminate as provided in the specific clauses in this Agreement,
this
Agreement shall continue in full force and effect until terminated
in
accordance with the provisions of this
Clause.
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15.2
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This
Agreement can be terminated at any time prior to the subscription
by the
Investor in the manner set out in Clause 4 of this Agreement, by
mutual
written agreement of the Parties.
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15.3
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This
Agreement shall stand terminated under Clause 4 if the Completion
does not
take place as per Clause 4.3.
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15.4
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Effect
of Termination: Termination of this Agreement under Clauses 15.2
to 15.3
shall be without liability of any Party (or any shareholder, director,
officer, agent, employee, consultant or representative of such Party)
to
the other Parties.
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15.5
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The
provisions of Clause 6 (Indemnity), 10 (Arbitration), 11 (Notices),
and 13
(Confidentiality) shall survive the termination hereof pursuant to
Clause
15.1.
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16 MISCELLANEOUS
PROVISIONS
16.1 Reservation
of Rights
No
forbearance, indulgence or relaxation or inaction by any Party at any time
to
require performance of any of the provisions of this Agreement shall in any
way
affect, diminish or prejudice the right of such Party to require performance
of
that provision, and any waiver or acquiescence by any Party of any breach of
any
of the provisions of this Agreement shall not be construed as a waiver or
acquiescence of any continuing or succeeding breach of such provisions, a waiver
of any right under or arising out of this Agreement or acquiescence to or
recognition of rights other than that expressly stipulated in this
Agreement.
16.2 Cumulative
Rights
All
remedies of either Party under this Agreement whether provided herein or
conferred by statute, civil law, common law, custom or trade usage, are
cumulative and not alternative and may be enforced successively or
concurrently.
16.3 Partial
Invalidity
If
any
provision of this Agreement or the application thereof to any Person or
circumstance shall be invalid or unenforceable to any extent, the remainder
of
this Agreement and the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not
be
affected thereby, and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. Any invalid or unenforceable
provision of this Agreement shall be replaced with a provision, which is valid
and enforceable and most nearly reflects the original intent of the
unenforceable provision. Provided however, if said provision is fundamental
provision of this Agreement or forms part of the consideration or object of
this
Agreement, the provision of this Clause shall not apply.
16.4
Amendments
No
modification or amendment of this Agreement and no waiver of any of the terms
or
conditions hereof shall be valid or binding unless made in writing and duly
executed by all the Parties.
16.5 Assignment
This
Agreement and the rights and liabilities hereunder shall bind and inure to
the
benefit of the respective successors of the Parties hereto, but no Party shall
assign or transfer any of its rights and liabilities hereunder to any other
Person without the prior written consent of the other Parties, which will not
be
unreasonably withheld. Notwithstanding anything stated above, the Investor
shall
be entitled to assign its rights and obligations hereunder to any of its
Affiliates or its holding company or ultimate parent company or their
Affiliates, without the consent of the other Parties.
16.6 Entire
Agreement
This
Agreement constitutes the entire Agreement between the Parties with respect
to
the subscription of the Equity Shares and supersedes and cancels any prior
oral
or written agreement, representation, understanding, arrangement, communication
or expression of intent relating to the subject matter of this
Agreement.
16.7 Relationship
None
of
the provisions of this Agreement shall be deemed to constitute a partnership
between the Parties hereto and no Party shall have any authority to bind the
other Party otherwise than under this Agreement or shall be deemed to be the
agent of the other in any way.
16.8 Governing
law
This
Agreement shall be governed and construed in accordance with the laws of India,
under the jurisdiction of the Mumbai courts, without regard to the conflict
of
laws principles.
16.9 Service
of Process
Subject
to the provisions of clause 10 of this Agreement, the Parties agree that any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of this Agreement may be brought against any of the Parties in
the
courts of Mumbai, India and each of the Parties consent to the jurisdiction
of
such courts (and of the appropriate appellant courts) in any such action or
proceeding and waives any objection to the venue laid therein. Process in any
action or proceeding referred to in the preceding sentence may be served on
any
party anywhere in the world.
16.10 Costs
Each
Party shall bear its own expenses incurred in preparing this Agreement including
any brokers, finders’ fee, financial advisor’s fees and the expenses incurred by
its representatives. The Parties agree to equally share in the cost of the
US
GAAP audits.
16.11 Force
Majeure
No
Party
shall be liable to the other if, and to the extent, that the performance or
delay in performance of any of its obligations under this Agreement is
prevented, restricted, delayed or interfered with due to circumstances beyond
the reasonable control of such Party, including but not limited to, Government
legislations, fires, floods, explosions, epidemics, accidents, acts of God,
wars, riots, strikes, lockouts, or other concerted acts of workmen, acts of
Government and/or shortages of materials. The Party claiming an event of
force majeure shall promptly notify the other Parties in writing, and
provide full particulars of the cause or event and the date of first occurrence
thereof, as soon as possible after the event and also keep the other Parties
informed of any further developments. The Party so affected shall use its best
efforts to remove the cause of non-performance, and the Parties shall resume
performance hereunder with the utmost dispatch when such cause is
removed.
16.12 Severance
Any
provision of this Agreement which is invalid or unenforceable shall be
ineffective to the extent of such invalidity or unenforceability, without
affecting in any way the validity, legality and enforceability of the remaining
provisions hereof. Should any provision of this Agreement be or become
ineffective for reasons beyond the control of the Parties, the Parties shall
use
reasonable efforts to agree upon a new provision, which shall as nearly as
possible have the same commercial effect as the inefficient
provision.
16.13 Good
Faith Negotiations and Further Assurances
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16.13.1
The Parties agree that if the transactions contemplated in this Agreement
cannot be completed in the manner set forth herein, then the Parties
shall
use reasonable endeavours to enter into other transactions that (a)
would
result in a substantially similar outcome and (b) do not prejudice
any of
the Parties. Each of the Parties further agrees that, during
any such negotiations, it shall refrain from initiating any legal
actions
against the other Parties; and
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16.13.2
Each Party agrees to perform (or procure the performance of) all
further
acts and things, and execute and deliver (or procure the execution
and
delivery of) such further documents, as may be required by law or
as the
other Parties may reasonably require, whether on or after the date
of this
Agreement, to implement and/or give effect to this Agreement and
the
transactions contemplated by it and for the purpose of vesting in
the
Investor the full benefit of the assets, rights and benefits to be
transferred to the Investor under this
Agreement.
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16.14 Public
announcements
Except
as
and to the extent required by Applicable Law, without the prior written consent
of the other Party, neither Party will, and each will direct its representatives
not to, make, directly or indirectly, any public comment, statement or
communication with respect to, or otherwise to disclose or to permit the
disclosure of the terms of this Agreement and the Transaction Documents. The
Investor however is required by the Securities and Exchange Commission
(‘SEC’) laws in the United States of America to disclose the
terms of this Agreement and the Transaction Documents, while filing with the
SEC, which may result into a press release or press exposure or disclosure
to
the general public.
16.15 Execution
in Counterparts
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which, taken together, shall constitute one and
the same instrument. A facsimile or copy of a signature is valid as an
original.
16.16 Authorisation
The
persons signing this Agreement on behalf of the Parties represent and covenant
that they have the authority to so sign and execute this document on behalf
of
the Parties for whom they are signing.
16.17 Time
of the essence
Any
date
or period mentioned in this Agreement may be extended by agreement between
the
Parties hereto, failing which, as regards any such date or period, time shall
be
the essence of the Agreement.
Execution
Page Follows:
IN
WITNESS WHEREOF THE PARTIES HERETO HAVE SET AND SUBSCRIBED THEIR RESPECTIVE
HANDS TO THESE PRESENTS ON THE DAY, MONTH AND YEAR HEREIN
WRITTEN:
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SIGNED
AND DELIVERED
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)
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BY
THE WITHINNAMED " Investor "
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)
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BY
THE HAND OF MR. RAM ▇▇▇▇▇▇▇
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)
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(Authorised
Signatory)
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)
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ON
THE 16th DAY OF SEPTEMBER 2007
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)
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IN
THE PRESENCE OF:
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)
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WITNESS:
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)
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NAME
AND ADDRESS:
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)
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SIGNED
AND DELIVERED
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)
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BY
THE WITHINNAMED "TECHNI ▇▇▇▇▇▇▇▇ LTD"
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)
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BY
THE HAND OF MR. JORTIN ANTONY
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)
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(AUTHORISED
SIGNATORY) PURSUANT TO THE
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)
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RESOLUTION
PASSED BY THE BOARD
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)
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ON
THE 16th DAY OF SEPTEMBER 2007
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)
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IN
THE PRESENCE OF:
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)
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WITNESS:
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)
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ADDRESS:
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)
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SIGNED
AND DELIVERED
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)
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BY
THE WITHINNAMED "Promoter"
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)
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Mr.
JORTIN ANTONY
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)
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ON
THE 16th DAY OF SEPTEMBER 2007
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)
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IN
THE PRESENCE OF:
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)
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WITNESS:
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)
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ADDRESS:
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