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GOVERNMENT OF INDIA
and
and
March 2, 2001
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SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT is made and entered into on this …. day of ………
2001.
BY AND AMONG:
STERLITE INDUSTRIES (INDIA) LTD a company duly incorporated and existing under
the provisions of the Act (as hereinafter defined/laws of India with its
registered office at B-10/4, Waluj MIDC Industrial Area. Waluj, Dist: Aurangabad
- 431 133. Maharashtra, India (hereinafter referred to as the "STRATEGIC
PARTNER" or the "SP" which expression shall include its successors, Affiliates
(as defined hereinafter), permitted assigns and liquidators)
and
RECITALS
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E. The remaining 800 voting equity shares are being held by nominees of the
Government, (hereinafter referred to as the "NOMINEE SUBSCRIBERS") more
specifically stipulated in Schedule "A" of the Share Purchase Agreement.
F. The SP. the Company and the Government are parties to an agreement of even
date whereby the Government has, subject to the terms and conditions
stated therein, agreed to sell and cause the Nominee Subscribers to sell
to the SP, and the SP has agreed to purchase from the Government and the
Nominee Subscribers, 11,25,18,495 (Eleven Crores Twenty Five Lacs Eighteen
Thousand Four Hundred Ninety Five) voting equity shares of the Company
(such shares, the "PURCHASE SHARES", and such agreement, the "SHARE
PURCHASE AGREEMENT").
G. The Parties have entered into this Agreement to record their agreement as
to the manner in which the Company's affairs shall be conducted after the
SP acquires the Purchase Shares from the Government and to grant to each
other certain rights and obligations with respect to their ownership,
directly and indirectly, of the voting equity shares of the Company.
H. Subject to Clause 7.2, the Parties envision that all employees of the
Company on the date hereof shall continue in the employment of the
Company.
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ARTICLE 1
1.1 DEFINITIONS
"ACT" means the Indian Companies Act, 1956, as now enacted or as the same may
from time to time be amended, re-enacted or replaced;
"AFFILIATE" means, with respect to any Party, any Person which is a holding
company or subsidiary of such Party, or any Person which, directly or
indirectly, (a) owns or controls such Party, (b) is owned or controlled by such
Party, or (c) is owned or controlled by the same Person who, directly or
indirectly, owns or controls such Party. For the purposes of this Agreement, the
terms "holding company" any "subsidiary" shall have the meanings ascribed to
them under Section 4 of the Act, and the term "control" shall mean:
"AGREEMENT" means this Shareholders Agreement and all attached schedules and all
instruments supplemental to or in amendment or confirmation of this Agreement
entered into by the Parties in writing;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which the
principal commercial banks located in Mumbai/New Delhi are open for business
during normal banking hours;
"EVENT OF BANKRUPTCY" in respect of a Person (other than the Government) means
the first to occur of any of the following:
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iii) if the Person avails itself of the benefit of any other legislation
for the benefit of debtors: or
"FAIR VALUE" means, with respect to any voting equity shares of the Company, the
price of such equity shares as determined in accordance with Schedule 6.1 of
this Agreement and expressed in terms of money;
"PARTIES" means, collectively, the Government, the SP and the Company and any
other Person which becomes a party to this Agreement, and "Party" means any one
of them;
"SHAREHOLDERS" means the Government and the SP together with such other Persons
as may become parties to this Agreement as an equity shareholder of the Company,
collectively, and "Shareholder" means any one of such parties individually;
(a) the descriptive headings of Articles and Clauses are inserted solely for
convenience of reference and are not intended as complete or accurate
descriptions of content thereof and shall not be used to interpret the
provisions of this Agreement;
(b) the use of words in the singular or plural, or with a particular gender,
shall not limit the scope or exclude the application of any provision of
this Agreement to any Person or Persons or circumstances as the context
otherwise permits;
(d) unless otherwise specified, time periods within or following which any
payment is to be made or act is to be done shall be calculated by
excluding the day on which the period commences and including the day on
which the period ends and by extending the period to the next Business Day
following if the last day of such period is not a Business Day; and
whenever any payment to be made or action to be taken under this Agreement
is required to be made or taken on a day other than a Business Day, such
payment shall be made or action taken on the next Business Day following.
(e) All capitalized words and expressions used in this Agreement but not
defined shall have the same meaning as ascribed to them in the Share
Purchase Agreement.
(f) The damages payable by either Party to the other of them as set forth in
this Agreement, are intended to be genuine pre-estimates of loss and
damage likely to be suffered and incurred by the Party entitled to receive
the same and are not by way of penalty or liquidated damages.
1.3 SCHEDULES
ARTICLE 2
This Agreement shall come into force and effect from and after the Closing
Date.
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reasonable efforts to comply and to cause the Company to comply with, this
Agreement. Each of such Shareholder shall, at all times, cause its
respective nominee(s) as directors of the Company to act in accordance
with this Agreement, amend the articles of association of the Company to
conform to this Agreement, and cause the Company to adopt such amended
articles of association through the passage of appropriate Board and
shareholder's resolutions and take other actions as required under law in
this regard.
In carrying out the obligations specified herein, the Parties shall comply
with all applicable Laws.
ARTICLE 3
(a) The Company and the Government represent and warrant to the SP that upon
the occurrence of the Closing, the Shareholders' respective equity
shareholding in the Company shall be as follows:
<TABLE>
<CAPTION>
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(c) If any offer to subscribe for voting equity shares of the Company pursuant
to Clause 3.2(a) (such offer, the "RIGHT") includes a right to renounce
the Right in favour of any other Person, then, no Shareholder shall
renounce such Right in favour of any other Person (other than an Affiliate
of the renouncing Shareholder) without first giving the other Shareholder
a reasonable opportunity to acquire such Right, either directly or through
its nominees on the same terms and conditions that such Right is proposed
to be renounced in favour of any other Person (other than an Affiliate of
the renouncing Shareholder).
(d) Any Person other than a Party hereto, who acquires any Shares pursuant to
Clause 3.2(c), shall execute a deed of adherence and an undertaking to
adhere to the terms and conditions of this Agreement. The rights of such
Person shall be determined in the following manner:
ii) Subject to the provisions of Section 3.2(c) above, in the event that
the non-renouncing Shareholder
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ARTICLE 4
b) The Parties agree that immediately after the sale and purchase of
the Purchase Shares between the Government and the SP, the Board
shall comprise of 9 directors of which the SP shall have the right
to appoint 5 directors (including the chief executive
officer/managing director).
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d) Both the Government and the SP shall vote the equity shares of the
Company held by them to elect/remove the directors nominated in
accordance with this Agreement.
4.4 QUORUM
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4.6 VOTING
Excepting the matters listed in Schedule 4.5, the Government or any other
entity nominated by it shall, at all shareholders' meeting of the Company,
exercise the voting rights attached to the voting equity shares of the
Company held by the Government in the manner directed in writing by the
SP. For purposes of clarity and avoidance of doubt, on any resolution that
directly or indirectly relates to matters specified in Schedule 4.5, the
Government shall be free to exercise the voting rights attached to the
Company's shares held by it in the manner it deems fit.
Throughout the term of this Agreement, the Company shall have a Managing
Director appointed by the Board in accordance with Clause 4.1(b). The
Managing Director shall be a member of the Board and shall manage the
daily operations of the Company. The term of the office of the Managing
Director shall be determined by a resolution of the Board. The Managing
Director shall function under the supervision, control and direction of
the Board and shall, subject to such supervision, control and direction,
have the authority to manage the business operations of the Company.
Subject to the provisions of Clause 4.5 read with Schedule 4.5, the powers
and duties of the Managing Director shall be defined and/or modified from
time to time by resolution of the Board, and shall include the powers and
duties to:
(a) incur capital expenditure which has been previously approved by the
Board and any other operational expenditure;
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(f) take such actions or execute such contracts on behalf of the Company
that are in the ordinary course of business of the Company.
ARTICLE 5
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(b) Subject to Clause 5.3(a), the SP may pledge, charge or mortgage any
Purchase Shares provided it gives a written notice to the
Government, at least 15 (fifteen)days prior to the creation of any
such pledge, charge or mortgage, specifying the identity of the
Person in whose favour the SP proposes to pledge, charge or mortgage
any Purchase Shares and the material terms and conditions concerning
pledge, charge or mortgage. Similarly, the Government may pledge,
charge or mortgage any equity shares of the Company held by it
provided it gives a written notice to the SP, at least 15 (fifteen)
days prior to the creation of any such pledge, charge or mortgage,
specifying the identity of the Person in whose favour the Government
proposes to pledge, charge or mortgage any equity shares of the
Company held by it and the material terms and conditions concerning
the creation of such pledge, charge or mortgage.
(c) The Parties agree that in the event that any share transfer
committee is constituted pursuant to Clause 4.1(e), no Transfer of
any Shares held by any Shareholder shall be approved by such share
transfer committee without an affirmative vote of the nominees of
both the SP and the Government on the share transfer committee.
Provided however, that the SP and the Government nominee on the
share transfer committee shall not withhold their approval to any
transfer of Share if such transfer is in accordance with the terms
of the Agreement.
a) For a period of 3 (three) years from the Closing Date, the SP hereby
pledges the Purchase Shares and undertakes that it shall pledge any
additional Shares that it may acquire pursuant to this Agreement
prior to the expiry of 3 (years) (collectively referred to as the
"PLEDGED SHARES"), to the benefit of the Government as a continuing
security to secure its performance and adherence to the prohibition
on transfer of the Pledged Shares for 3 (three) years as provided in
sub-clause 5.1(a).
b) The Government hereby agrees that upon the expiry of 3 years from
the Closing Date, the Government shall issue a pledge closure
confirmation form in respect of all the Pledged Shares to the
Depository Participant of the Government.
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f) Upon the expiry of three (3) years from Closing, both the SP and the
Government shall have the right to submit the share certificates
bearing the legend to the Company and seek the substitution by a new
share certificate without the legend.
(c) Upon the Sale Notice being given, the Other Shareholder shall have
the right, exercisable at its sole discretion, to purchase all, but
not less than all, of the Offer Shares.
(d) Within 30 Business Days of the Sale Notice (the "OFFER PERIOD"), the
Other Shareholder may give to the Offeror a notice in writing (an
"ACCEPTANCE NOTICE") accepting the offer contained in the Sale
Notice. If the Acceptance Notice is given by the Other Shareholder,
the transaction of purchase and sale shall be completed within 60
Business Days of the expiry of the Offer Period.
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(f) In the event that the Offeror is the Government and the Other
Shareholder, being the SP, does not give the Acceptance Notice in
accordance with the provisions of Clause 5.3(d), the Government may
decide, in exercise of rights of an Offeror provided in Clause
5.3(e), to offer the Offer Shares to the public and the Government
shall promptly inform the SP of such decision to offer the Offer
Shares to the public.
(h) The Government shall be under an obligation to sell and the SP shall
be under an obligation to purchase the Re-offered Shares within 15
(fifteen) days of the date of Public Offer Call Notice at the Offer
Price.
(i) Upon the completion of the sale and purchase of the Re-offered
Shares or if the SP does not give the Public Offer Call Notice
within the period specified in sub-clause 5.3(g), the Government
shall be entitled to sell the Offer Shares or such part of the Offer
Shares as are remaining after the exercise of the Public Offer Call
Notice by the SP at a price not lower than the Offer Price.
(j) The SP and the Government shall cause such resolutions to be passed
at the shareholders meeting and Board meeting as may be required for
the listing of the Company's Shares at the stock exchange(s), under
applicable Law, including without limitation, Securities Exchange
Board of India guidelines and listing conditions. Further, the SP
and the Government shall cause the Company to comply with all
Securities Exchange Board of India guidelines, issue norms and
listing guidelines and all other conditions for listing under
applicable Law.
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(l) All Sale Notices, Acceptance Notices or any other notices given
under this Clause shall be given concurrently to the Company.
(m) Notwithstanding anything to the contrary in this Article 5, the
Government, shall at its sole discretion, have the option of selling
from its shares representing not more than 5% (five percent) of the
equity share capital existing as of date of this Agreement, to the
employees of the Company. In the event that the Government exercises
its option to sell part of its shares to the employees, the
employees shall be issued fresh share certificates for the shares
transferred to the employees, without the endorsement of the legend
provided in Clause 5.2(e). The Parties agree that, upon the
completion of transfer, the shares transferred to the employees
pursuant to this sub-clause (m) shall not be subject to any
restrictions in this Agreement, whether by way of a voting
arrangement or a right of first refusal.
b) In the event that the Other Shareholder delivers a Tag Along Notice
to the Offeror, the Offeror shall ensure that along with the Offer
Shares, the proposed third party purchaser also acquires the shares
specified in the Tag Along Notice for the same consideration and
upon the same terms and conditions as applicable to the Offer
Shares.
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willing to purchase among the Sale Shares and the shares mentioned
in the Tag Along Notice pro-rata in the ratio of equity shareholding
in the Company at such time of the Offeror and the Other Shareholder
and to complete such transfer on such terms.
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(i) sell all or any of the voting equity shares of the Company
held by the Non- Defaulting Party to the Defaulting Party
(such offer being referred to in this Clause 5.7 as, an "Offer
to Sell") at a price that is equivalent to 125% of the price
of such equity shares determined in accordance with Clause
6.1, Provided however, that in the event that the Defaulting
Party is the SP and the event of breach committed by the SP is
under the terms of sub-clauses 7.2(e) and (f), Clause 4.5 read
with item 20 of Schedule 4.5 or this Article 5, the price at
which the Government (the Non-Defaulting Party) may make the
Offer to Sell shall be 150% of the price of such equity shares
determined in accordance with Clause 6.1; or
(b) Within 30 Business Days of the Notice being given containing the
Offer to Sell or the Offer to Purchase, as the case may be, the
Defaulting Party shall complete the transaction of the purchase and
sale.
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(c) The Defaulting Party shall be liable for all costs and expenses
(including reasonable legal fees) including, but not limited to,
those that the Non-Defaulting Party or its nominee may incur to
complete the transaction of sale and purchase pursuant to this
Clause 5.7 and comply with the applicable rules and regulations of
the Securities and Exchange Board of India, if applicable.
a) The Parties hereby agree that upon the expiry of the third
anniversary of the Closing Date, and at any time thereafter, the SP
shall have the option to issue a notice ("CALL NOTICE") to the
Government, thereby requiring the Government to sell to the SP
within a period of 60 (sixty) days from the date of receipt of the
Call Notice (the "CALL PERIOD"), all but not less than all the
voting equity shares in the Company then held by the Government,
(the "CALLED SHARES") and the Government in that event shall be
under mandatory obligation to sell the Called Shares as aforesaid.
The price for the sale and purchase of the Called Shares pursuant to
this Clause shall be the higher of:
b) The Parties shall cause the Fair Value of the Called Shares to be
determined within 30 days of the date of receipt of the Call Notice.
c) Upon receiving a Call Notice from the SP, the Government shall not
be entitled to sell, transfer, assign, pledge, charge, mortgage or
in any other way dispose of or encumber its Shares during the Call
Period. If the purchase, pursuant to the Call Notice is not
completed by the SP, the Government shall be relieved of its
obligations to sell the Called Shares specified in Clause 5.8
herein. For the avoidance of doubt, other than the right of first
refusal provided in Clause 5.3 and the tag along rights provided in
Clause 5.4, there shall be no restriction on the right of the
Government to Transfer any or all of its Shares till such time that
the Call Notice is received by the Government.
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d) Upon the issuance of the Call Notice by the SP, the SP shall be
under an obligation to complete the purchase of the Called Shares
within the Call Period.
e) The sale and purchase of the Called Shares pursuant to this Clause
5.8 shall be subject to the procurement of all Approvals.
ARTICLE 6
6.1 VALUATION
The purchase price payable for any voting equity shares of the Company to
be transferred hereunder at a price determined pursuant to this Clause 6.1
shall be equal to the Fair Value determined, as at the date of the event
which gives the right of purchase or sale (the "VALUATION DATE"), in
accordance with the principles of valuation set forth in Schedule 6.1.
6.2 CLOSING
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ARTICLE 7
(b) it has the corporate power and authority to enter into and perform
its obligations under this Agreement;
(c) this Agreement has been duly authorised, executed and delivered by
it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms;
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the applicable staff regulations and standing orders of the Company
or applicable Law; and
(h) It shall vote all the voting equity shares of the Company, directly
or indirectly, held by it to ensure that all provisions of this
Agreement, to the extent required, are incorporated in the Company's
articles of association.
The Government represents and warrants to each of the Company and the SP
that:
(a) it has the power and authority to enter into and perform its
obligations under this Agreement;
(b) this Agreement has been duly authorised, executed and delivered by
it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms;
(d) it shall vote all the voting equity shares of the Company held by it
to ensure that all provisions of this Agreement, to the extent
required, are incorporated in the Company's articles of association.
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ARTICLE 8
INDEMNIFICATION AND CONFIDENTIALITY
8.1 INDEMNIFICATION
Each Shareholder agrees to indemnify, defend and hold harmless each of the
Company, the other Shareholder, and their respective lawful successors and
assigns from and against any and all losses, liabilities, claims, damages,
costs and expenses including reasonable legal fees and disbursements in
connection therewith and interest chargeable thereon (collectively,
"CLAIMS") asserted against or incurred by the Company or such other
Shareholder which arise out of; results from, or may be payable by virtue
of any breach of any representation, warranty, covenant or agreement made
or obligation required to be performed by the indemnifying Shareholder
pursuant to this Agreement; provided, however, that in no event shall the
indemnifying Shareholder be liable, wherein in contract, tort,
misrepresentation, warranty, negligence, strict liability or otherwise,
for any special, indirect, incidental or consequential damages arising out
of or in connection with this Agreement, or any performance,
non-performance or breach of any provision hereof.
8.2 CONFIDENTIALITY
The SP agrees that it shall not, at any time or under any circumstances,
without the prior written consent of the Company and the Government,
directly or indirectly communicate or disclose to any Person (other than
an Affiliate of SP) any knowledge or information howsoever acquired by
them relating to the customers, products, technology, trade secrets,
systems, operations or other confidential information regarding the
property, business and affairs of the Company or any of its subsidiaries
including, but not limited to, any foreign collaboration agreements and
technical collaboration agreements entered into by the Company or any of
its subsidiaries. The SP further agrees that it shall not utilise, or make
available to any Person any such knowledge or information, in connection
with the transfer or proposed transfer of any of the Securities, Provided
however that the confidentiality obligation under this Clause 8.2 shall be
subject to the following exceptions:
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a) disclosure to the employees and auditors requiring the information for the
purposes of this Agreement subject to the execution of a confidentiality
agreement by them; or
d) if required by Law; or
ARTICLE 9
GOOD FAITH
9.1 The SP confirms that it has, prior to the Closing, disclosed particulars
to the Government of any activities or business that it is engaged in that
are in competition with the business of the Company.
9.2 In the event that the SP, its Affiliates or its nominees at any time after
Closing, decides to undertake any activities or businesses that may be in
competition with the then existing business of the Company, the SP shall
be under an obligation to disclose such activity or business to the
Government.
9.3 The SP agrees that, in the event that, at any time, the SP, its Affiliates
or its nominees is engaged in any activities or businesses that may be or
is in competition with the Company's business, both existing or future,
then the SP its Affiliates or its nominees shall always act in good faith
and in the interests of the Company.
ARTICLE 10
MANAGEMENT DEADLOCK
10.1 In the event that the Government withholds its consent for a matter
specified in Schedule 4.5 in a Board Meeting and the same matter is placed
before the Board in the next Board Meeting or a Board Meeting held within
three (3) months of the first Board Meeting at which the consent was
withheld by the Government,
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the Government may at is discretion, either:
10.2 Within fourteen (14) days after receipt of a Deadlock Notice by the SP,
the Parties shall refer the Deadlock Notice to the senior representatives
of the SP and the Government for resolution of the Deadlock.
10.3 If the senior representatives of the Parties fail to resolve the Deadlock
within sixty (60) days of the reference of the Deadlock Notice, or such
extended period as may be agreed in writing between the Parties, the
Parties shall proceed in accordance with Article 10.4.
10.4 In the event that the matter of Deadlock, is not resolved in terms of
Article 10.3, the Government may serve notice on the SP requiring the SP
to buy all the Shares held by the Government at the higher of their Fair
Value or the unit sale price (as provided in Clause 2.1 of the Share
Purchase Agreement at which the SP has purchased the Purchase Shares
pursuant to the Share Purchase Agreement) together with interest at the
rate of 14% per annum compounded with half yearly rests and calculated
from the Closing Date after giving credit for the dividend received by the
Government as a Shareholder of the Company during the period from the
Closing till the date of the completion of the sale and purchase of the
said shares.
10.5 In the event that the Government serves a notice on the SP pursuant to
Clause 10.4, the SP shall complete the purchase of the Shares held by the
Government within sixty (60) days of receipt of such notice.
ARTICLE 11
MISCELLANEOUS
11.1 ARBITRATION
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The terms of this Agreement shall apply mutatis mutandis to any shares:
(c) and prior to any such action being taken the Parties shall give a
consideration to any changes which may be required to this Agreement
in order to give effect to the intent of this Clause.
The Parties shall, with reasonable diligence, do all such things and
provide all such reasonable assurances as may be required to consummate
the transactions contemplated by this Agreement, and each Party shall
provide such further documents or instruments required by any other Party
as may be reasonably necessary or desirable to effect the purpose of this
Agreement and carry out its provisions.
This Agreement shall ensure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and permitted
assigns of the Parties hereto. Irrespective of whether or not the
memorandum and/or articles of association of the Company fully
incorporate the provisions hereof or any of them, the Government and the
SP's rights and obligations shall be governed by this Agreement which
shall prevail in the event of any ambiguity or inconsistency between the
articles of association of the Company and the provisions of this
Agreement.
11.5 ENTIRE AGREEMENT
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11.7 ASSIGNMENT
Except as may be expressly provided in this Agreement, none of the Parties
to this Agreement may assign its rights or obligations under this
Agreement without the prior written consent of all of the other Parties.
11.8 TERMINATION
(a) the written agreement of all of the Company, SP and the Government;
or
(c) either Party becoming the beneficial owner of more than 75% of the
voting shares of the Company; or
11.9 SURVIVAL
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11.10 SEVERABILITY
11.11 NOTICES
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11.14 COUNTERPARTS
This Agreement may be executed by the Parties in separate counterparts
each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, EACH OF THE PARTIES have caused this Agreement to be duly
executed by their duly authorised representatives on the date and year first
hereinabove written.
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SCHEDULE 4.5
2. Change the place of the registered office from one State to another.
6. Determine that any portion of the share capital not already called up shall
not be called up except in the event of, and for the purpose of, winding up
the Company.
9. Keep registers and returns at any other place than within city, town or
village in which the registered office is situated.
10. Authorise the payment of interest on the paid-up amount of share capital
raised for the purpose of defraying the expenses of construction of any
work or building or the provisions of any plant that cannot be made
profitable for a lengthy period.
13. Make loans or provide guarantees or security to other companies under the
same management.
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16. Bind the Company by a scheme of arrangement made under Section 517 of the
Act.
17. For various other matters pertaining to the winding up of the company under
Sections 433(a), 494(1)(b), 507.512(l), 546(l)(b), 550(l)(b)of the Act.
18. Any buy-back by the Company of Shares under the provisions of Section 77A
of the Act.
19. The granting of any security or creation of any Liens on the assets of the
Company or guaranteeing the debts of any Person which in aggregate exceeds
100% of the free reserves and paid up capital of the Company but excluding
those necessary to secure operating lines of credit/working capital
requirements of the Company with institutional investors, multilateral
agencies, scheduled banks and financial institutions.
20. Any one or a series of transactions which causes a sale, lease, exchange or
disposition of property or assets of the Company or its subsidiary having
an aggregate value exceeding 20% of the total value of the net fixed assets
of the Company as specified in the Audited Financial Statement.
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SCHEDULE 6.1
PRINCIPLES OF VALUATION
(a) VALUATION PROCEDURE
In determining the Fair Value of the relevant voting equity shares of the
Company, the independent valuer shall take into account various factors,
including, but not limited to the following:
iii) if the Company is listed, the current price of the voting equity
shares of the Company as quoted on the stock exchange(s) where they
are primarily traded;
iv) the Securities and Exchange Board of India's guidelines and principles
of valuation, if applicable;
v) whether such voting equity shares of the Company which are subject to
the transaction of purchase and sale constitute a minority block or a
majority block of all of the issued and outstanding voting equity
shares of the Company;
vi) whether such equity shares have any contractual rights with respect to
the Company attached to them and appropriate discount or premium shall
be applied to its valuation on the basis thereof;
All cost and expenses relating to the determination of the Fair Value of
any voting equity shares of the Company pursuant to this Schedule shall be,
unless otherwise expressly provided, shared equally among the vendors and
purchasers in the subject transaction. Provided that if the sale or
purchase of Shares under this Agreement is pursuant to a breach by either
Party, then the Defaulting Party shall bear the entire cost and expenses
relating to the determination of the Fair Value of any voting equity shares
of the Company
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(c) Each Party agrees that the following entities and their successor entities
are acceptable to the Party as the independent valuer to be appointed
pursuant to sub Clause (a) of this Schedule 6.1.
5. A. F. FERGUSON & CO
d) The Parties agree that the list of entities in sub-Clause (c) of this
Schedule 6.1, shall be subject to such additions and modifications as the
Parties may mutually decide from time to time.
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SCHEDULE 6.2
b) If the Shares are held in physical form and are proposed to be transferred
in physical form, the transferor(s) shall transfer and assign to the
transferee(s) good title to the Transfer Securities being transferred and
assigned free and clear of all Liens and shall deliver the following
documents to the transferee
ii) Duly endorsed blank transfer deeds for the Transfer Securities;
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behalf of and in the name of the transferor, such deeds, transfers, share
certificates, resignations or other documents that may be necessary to
complete the subject transaction.
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SCHEDULE 11.1
ARBITRATION PROCEDURE
(b) ARBITRATION
Any Dispute which is not settled after an attempt by the parties to the
Dispute at amicable negotiations and conciliation under Clause (a) of this
Schedule 11.1 shall be resolved by final and binding arbitration held in
New Delhi in accordance with the provision of Indian Arbitration and
Conciliation Act, 1996, as amended (the "ARBITRATION ACT").
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All notices and other communications by one party to the Dispute to the
other or by the arbitral tribunal to any of such parties in connection with
the arbitration hereunder shall be in accordance with the provisions of
Clause 11.11 of the Agreement.
Each of the Parties expressly understands and agrees that the Award shall
be the sole, exclusive, final and binding remedy between them regarding any
and all Disputes presented to the arbitral tribunal. Application shall be
made to any court with jurisdiction over the party (or its assets) against
whom the Award is rendered for a judicial acceptance of the Award and an
order of enforcement.
The pendency of dispute in any arbitration proceeding shall not affect the
performance of the obligations under this Agreement.