FIRST AMENDMENT TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED 2ND FEBRUARY 2007
Exhibit 10.1
FIRST
AMENDMENT TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED
2ND
FEBRUARY 2007
THIS
First
Amendment to the Share Subscription cum Purchase Agreement dated 2nd
February 2007
(hereinafter referred to as “Amendment”)
is
entered on this 25
day
of
April
2007;
BY
AND AMONG
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MBL
INFRASTRUCTURES LIMITED,
a
company incorporated in India under the Companies Act, 1956 and having
its
registered office at 23A, Xxxxxx Xxxxxxx Xxxx, 0xx Xxxxx, Xxxxx Xx.
00,
Xxxxxxx - 000000 (hereinafter
referred to as the “Company”);
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| 2. |
THE
PERSONS
whose names and particulars are more particularly set out in Schedule
1
hereto (hereinafter referred to collectively as “Promoters”
and each, a “Promoter”,
which expression shall unless repugnant to the context or meaning
thereof,
be deemed to mean and include their heirs, legal representatives,
executors, and administrators);
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| 3. |
INDIA
GLOBALISATION CAPITAL, INC. a
company organised under the laws of the State of Maryland and
having its office address at 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 (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).
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(The
Investor, the Promoters and the Company may hereinafter be referred to
individually as “Party”
and
collectively as “Parties”,
as the
context may require).
Whereas
the Investor, the Promoters and the Company are the parties to that certain
Share Subscription cum Purchase Agreement (the “Share Subscription cum Purchase
Agreement”) dated 2nd
February, 2007, pursuant to which the Investor has agreed to purchase the Sale
Shares from the Promoters and subscribe to fresh Equity Shares such that post
purchase and subscription the Investor is
the
direct and legal owner of upto 57 % of the total issued and paid up equity
share
capital of the Company.
WHEREAS,
the Investor, the Company and the Promoters desire to amend the Share
Subscription cum Purchase Agreement on the terms and conditions hereinafter
set
forth.
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES COVENANTS AND AGREEMENTS
HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS:
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1.
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Amendment
to Clause 4.1.10 - Clause 4.1.10 is hereby amended to read in its
entirety
as follows:
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(A)
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Investor
receiving by May 15, 2007 from the Promoters and the Company three
year
financial statements for the period ended March 31, 2006, March 31,
2005
and March 31, 2004 converted into US GAAP and audited by a Public
Company
Accounting Oversight Board top 5 accounting firm and unaudited US
GAAP
financial statements for the period commencing April 1, 2006 and
ending
December 31, 2006.
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(B)
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Investor
receiving by June 30, 2007 from the Promoters and the Company financial
statements for the period ended March 31, 2007 converted into US
GAAP and
such converted accounts audited by a Public Company Accounting Oversight
Board top 5 accounting
firm.
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2.
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Amendment
to Clause 5.3 - Clause 5.3 is hereby amended to read in its entirety
as
follows:
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Upon
fulfillment 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 sale of the Sale Shares to the Investor and the issue of the
Subscription Shares to the Investor (‘Completion’) in the manner provided in
this Clause and shall agree upon a date on which the Completion shall take
place. The date so agreed between Investor, the Company and the Promoters shall
hereinafter be referred to as the ‘Completion Date’.
Such
Completion Date shall be a date not later than 30.11.2007
This
date may however be extended upon mutual agreement between the
Parties.
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3.
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This
Amendment shall become effective upon the execution and delivery
of this
Amendment by the Investor, the Promoters and the Company.
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4.
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Amendment
to the Share Subscription cum Purchase Agreement. The Share Subscription
cum Purchase Agreement is hereby, and shall henceforth be deemed
to be,
amended, modified and supplemented in accordance with the provisions
hereof, and the respective rights, duties and obligations under
the Share
Subscription cum Purchase Agreement shall hereafter be determined,
exercised and enforced under the Share Subscription cum Purchase
Agreement, as amended, subject in all respects to such amendments,
modifications, and supplements and all terms and conditions of
this
Amendment.
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5.
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Ratification
of the Agreement. Except as expressly set forth in this Amendment,
all
agreements, covenants, undertakings, provisions, stipulations, and
promises contained in the Share Subscription cum Purchase Agreement
are
hereby ratified, readopted, approved, and confirmed and remain in
full
force and effect.
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6.
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No
Implied Waiver. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver
or
modification of any provision of, or operate as a waiver of any right,
power or remedy of the Parties under, the Share Subscription cum
Purchase
Agreement or prejudice any right or remedy that either Party may
have or
may have in the future under or in connection with the Share Subscription
cum Purchase Agreement or any instrument or agreement referred to
therein.
The Parties hereto acknowledge and agree that the representations
and
warranties of the Parties contained in the Share Subscription cum
Purchase
Agreement shall survive the execution and delivery of this Amendment
and
the effectiveness hereof.
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7.
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Governing
Law. This Amendment shall be governed by and be governed by and construed
in accordance with the laws of
India.
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8.
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Counterparts.
This
Amendment 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.
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IN
WITNESS WHEREOF THE PARTIES OF THIS ADDENDUM HAVE SET AND SCRIBED THEIR HANDS
AT
KOLKATA, ON THE DAY MONTH AND YEAR FIRST NOTED ABOVE, IN PRESENCE
OF:
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SIGNED
AND DELIVERED
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BY
THE WITHIN NAMED "
INVESTOR "
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XXXXXXX
XXXXXXX
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "COMPANY"
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BY
THE HAND OF MR. RAM XXXXX XXXXXXXXXX
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(AUTHORISED
SIGNATORY) PURSUANT TO THE
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RESOLUTION
PASSED BY THE BOARD
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "Promoters"
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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