AMENDMENT TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED 15TH DAY OF SEPTEMBER, 2007
EXHIBIT
10.1
AMENDMENT
TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED 15TH DAY OF SEPTEMBER,
2007
THIS
Amendment to the Share
Subscription cum Purchase Agreement dated 15th
September, 2007 (hereinafter referred to as “Agreement”) is entered on
this 19th day of December, 2007 at Mumbai
BY
AND AMONG
INDIA
GLOBALIZATION
CAPITAL, INC. a company
organized under the laws of the State of Maryland and
having its office address at 0000
Xxxxxxxxxx Xxxxxx Xxxxxxxx, XX 00000, acting
directly or indirectly through
one or more of its newly formed non US Affiliates, alongwith such newly formed
non-US Affiliates (hereinafter collectively 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
SRICON
INFRASTRUCTURE PRIVATE
LIMITED, a company incorporated under the Indian Companies Act, 1956,
having its registered office at Sricon Xxxxx 00, Xxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx, Xxxxx (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.
(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
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A.
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The
Parties entered into a Share Subscription cum Purchase Agreement
on the
15th
day of September, 2007 (the “SSA”), setting out the terms and conditions
subject to which the Investor would subscribe to the Subscription
Shares;
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B.
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Clause
3 of the SSA sets out the conditions to be satisfied by the Parties
prior
to the Investor subscribing to the Subscription Shares. Some of the
conditions to be satisfied by the Parties are as under: (i) 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, (ii) 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, (iii) 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, (iv) each of
the
Promoters delivering to the Investor a no-objection certificate in
the
form contained in Schedule 4 to the SSA and a no-objection certificate
from the Company in the form contained in Schedule 4A to the SSA;
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C.
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The
Company is in need of urgent funds and pending satisfaction of the
conditions precedent set out in Clause 3 of the SSA, has requested
the
Investor to infuse the Portion of Subscription Price (as defined
below),
towards subscription to Portion of Subscription Shares (as defined
below);
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D.
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The
Investor has agreed to subscribe to the Portion of Subscription Shares
in
the Company subject to the terms and conditions set out in this Agreement.
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1
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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DEFINITIONS
AND
INTERPRETATION
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“Account”
means the account to be opened by the Parties with Citibank N.A.
“Completion”
means completion of the events specified in Clause 5 hereof and the Investor
being registered as a member in respect of the Portion of the Subscription
Shares in the register of members of Company.
‘Completion
Date' shall mean the date specified by the Investor for Completion.
“Existing
Accounts” means the current accounts maintained by the Company with Allahabad
Bank, Manish Nagar branch, Nagpur, bearing account no. 20075 and State Bank
of
India, Xxxxxxxxxx Nagar branch, Sonalwada, Nagpur, bearing account no.
00000000000,
“Funding”
means the funding of the Portion of Subscription Price by the Investor upon
fulfillment, or waiver, of the conditions precedent prescribed in Clause
4;
“Funding
Date” means the date on which the Funding occurs;
“Portion
of Subscription Price” means Rs. 12,83,42,500/- (Rupees Twelve Crores Eighty
Three Lacs Forty Two Thousand Five Hundred only) forming part of the
Subscription Price.
“Portion
of Subscription Shares” means 5,03,620 equity shares, constituting 14.66% of the
post issued paid up share capital of the Company and forming part of the
Subscription Shares.
“Promoters
Shares” means 15,79,711 Shares representing 53.88% of the existing Share Capital
of the Company.
“SSA”
shall have the meaning ascribed to it in Recital A.
All
capitalized expressions not defined in the Agreement, but defined in the SSA,
shall have the same meaning ascribed to it in the SSA.
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2.
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SUBSCRIPTION
FOR SHARES AND
INITIAL ADVANCE AGAINST SHARES
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(a)
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Subject
to the terms of this Agreement, the Investor hereby agrees to subscribe
for, and the Company agrees to allot and issue to the Investor at
Completion, the Portion of Subscription Shares, provided that subject
to
Clause 3, the Portion of Subscription Price shall be funded as advance
against Shares of the Company.
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(b)
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The
consideration payable by the Investor to the Company for the Portion
of
Subscription Shares shall be the Portion of Subscription Price or
thereabout as the Parties may mutually agree.
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3.
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CONDITIONS
PRECEDENT
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The
obligation of the Investor to fund the Portion of Subscription Price is subject
to the fulfillment, prior to or simultaneously on the Funding Date (or at the
time specified below), of the following conditions and delivery and execution
of
the following items in form and substance satisfactory to the Investor, any
one
or more of which may be waived in writing by the Investor in its sole
discretion:
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(a)
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the
Representations and Warranties as provided in Clause 5 and Schedule
3 of
the SSA and under this Agreement, remaining true and correct on the
Funding Date;
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(b)
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approval
of the Board for (i) the execution, delivery and performance by the
Company of this Agreement, (ii) creation of an Account in the manner
and
for the purposes contemplated in this Agreement, (iii) appointment
of the
Investor’s nominee as an authorized signatory to the Existing Accounts and
the Account to be created pursuant to this Agreement, (iv) deposit
into
the Account, 20% of the receivables paid into the Existing Accounts,
including without limitation, the receivables due to the Company
pursuant
to the Joint Venture Agreement entered into by the Company with Hindustan
Steel Works Constructions Limited, (v) granting irrevocable authority
to
the Investor’s nominee being the authorized signatory to the Account, to
operate and withdraw the amounts lying to the credit of the Account
at any
time and for any reason whatsoever, (vi) subject to the
approval of the members, amending the Articles of Association of
the
Company to give effect to the matters set out in Clause 4, (vii)
in-principle allotment of such number of shares to the Investor,
at the
specific request of the Investor, pending subscription to the entire
Subscription Shares, as will increase the Investor’s shareholding in the
Company to 51%, and an undertaking that such allotment will be completed
within 2 working days of the Investor infusing funds towards subscription
to the share capital of the Company and requesting the Company to
allot
Shares, and (viii) implementing the relevant transactions set forth
in
this Agreement to which the Company is a party or which require approval
by the Board;
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(c)
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each
of the Company and the Promoters having performed and complied with
all
agreements, obligations and conditions contained in this Agreement
that
are required to be performed or complied with by it on or before
the
Funding;
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(d)
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memorandum
and articles of association of the Company being amended to reflect,
to
the extent permitted by law, the provisions of this Agreement;
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(e)
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one
(1) nominee of the Investor having been duly elected/appointed as
Director, effective upon Funding;
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(f)
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the
Company having opened the Account;
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(g)
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evidence
being adduced by the Promoters, of written instructions issued to
the
banks with whom the Existing Accounts are maintained by the Company,
of
the inclusion of Mr. Ram Xxxxxxx as an authorized signatory to the
Existing Accounts and evidence being adduced of written instructions
issued to Citibank N.A of the change in authorized signatories and
appointment of Mr. Ram Xxxxxxx of the sole authorized signatory of
the
Account with Citibank;
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(h)
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certificate
from the Promoters and the Company confirming that (i) they have
given
written instructions to the banks with whom Existing Accounts are
maintained, for automatic transfer into the Account, every month,
with
effect from April 1, 2008, of 20% of the receivables paid into the
Existing Accounts, including without limitation, the receivables
due to
the Company pursuant to the Joint Venture Agreement entered into
by the
Company with Hindustan Steel Works Constructions Limited, and that
they
have taken all necessary steps to ensure automatic and regular transfer
of
funds as contemplated herein, (ii) no lender or third party has any
rights
over the funds lying to the credit of the Existing Accounts (iii)
the
Company has not entered into any agreement or understanding whereby
any
party other than the Investor has priority over the funds in the
Existing
Accounts or the Account;
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(i)
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the
Company appointing the Investor’s nominee as the authorized signatory to
the Account with an undertaking that (i) except upon specific written
instructions of the Investor, the Investor’s nominee shall not be replaced
and such appointment and understanding having been communicated to
Citibank N.A (ii) they shall not open any savings or current account
or
any other account with any bank except with the specific written
consent
of the Investor;
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(j)
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the
Company issuing irrevocable written instructions to Citibank N.A.,
to
honor all cheques, demand drafts and other payment instructions issued
by
the Investor’s nominee, without first obtaining approval of the Promoters
or the Company;
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(k)
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the
Company obtaining a certificate from an independent chartered accountant
indicating the ‘fair value’ of the Shares calculated in accordance with
the Guidelines for Valuation of Shares and Fixation of Premia.
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The
Promoters shall fulfill all their obligations hereunder and shall, to the extent
within their power and control, cause the Company to fulfill all its obligations
hereunder so as to ensure that the conditions set forth in this Clause are
fulfilled by such dates as specified above, to the satisfaction of the
Investor.
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4.
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FUNDING
EVENTS
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(a)
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Funding
shall take place on the Funding Date, or at such other place as the
Parties may agree. The Portion of Subscription Price shall be retained
as
advance against Shares, until Completion.
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(b)
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Simultaneously
upon Funding, the provisions of Clauses 3 (Conditions subsequent
to
Completion), 4.1(e) (Voting), 4.1(g) (Meeting and Minutes of Board
Meeting), 4.1(h) (Notice), 4.1(i) (Quorum), 4.1(j) (Determination
of
Quorum), 4.1(k) (Resolution by Circulation), 4.2 (Management and
other
Committees), 4.3 (Rights of the Investor), 4.4 (Veto Rights, to the
extent
of meetings of the Board) (subject to Clause 4(e) herein) and 5 (Dividend
Policy) of the Shareholders Agreement shall become effective and
the
Promoters and the Company shall be bound by the terms contained therein.
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(c)
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The
Promoters and the Company shall not propose any resolution at a
Shareholders Meeting, if such resolution has not been approved by
the
director nominated by the Investor at a meeting of the Board.
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(d)
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Until
Completion under this Agreement, the Promoters shall not be entitled
to
Transfer all or any part of their Shareholding to any Person. Approval
of
the director nominated by the Investor shall be required for passing
any
resolution which will have the effect of changing the signatories
to the
Existing Accounts or the Account and for opening any account with
any
bank.
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(e)
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The
Parties agree that where a
resolution for allotment of shares in favour of the Investor is proposed
by the director nominated by the Investor, the Promoters shall (if
they
are also Directors) / cause the directors nominated by them on the
Board,
to vote in favour of the
resolution.
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(f)
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A
meeting of the shareholders shall be convened and a special resolution
shall be passed approving amendment to the Articles of Association,
to
give effect to the matters set out in this Agreement.
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(g)
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The
Promoters agree and acknowledge that until Funding, they are in complete
control over the affairs of the Company and undertake that they shall,
to
the extent within their power and control, cause the Company to fulfill
all its obligations hereunder so as to ensure that the covenants
set forth
in this Agreement are fulfilled by such dates as specified in this
Agreement. To secure the performance of the obligations of the Promoters
and the Company as set out in this Agreement, the Promoters shall
create a
pledge on the Promoter Shares in favour of the Investor or any Person
nominated by it. For such purpose, the Promoters shall on the Funding
Date
or any date thereafter, and if required, with the approval of the
regulatory authorities, if required, deliver the following documents
to
the Investor, or his representative/nominee:
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Original
certificates evidencing
right, title and interest to the Promoter
Shares;
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Undated
share transfer forms
signed by the Promoters in favour of the
Investor;
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·
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A
duly stamped, irrevocable power
of attorney (substantially in the form and content as specified in
Schedule
2hereof)
from each Promoter,
pursuant to which each Promoter permits the Investor to take all
necessary
action and sign all necessary documents, letters, undertakings etc.
as may
be required so as to effect a transfer of the Promoter Shares to
the
Investor or any of his nominees, as the case may be, and be registered
as
a ‘member’ in respect of the Promoter
Shares;
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·
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the
shareholding pattern of the Company after the exercise of the pledge
by
the Investor.
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(g)
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The
Promoters unconditionally
agree,
acknowledge, undertake and
confirm that they shall take all necessary
action and sign
all necessary documents, letters, undertakings etc. as may be required
so
as to effect a transfer of the Promoter Shares to the Investor or
any of
his nominees, as the case may be, and be registered as a member
inrespect of
the
Promoter Shares, if called upon by the Investor to do
so.
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(h)
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The
Promoters and the Company agree and acknowledge that the covenants
and
obligations under Clauses 3 and 4 relate to special, unique and
extraordinary matters, and that a violation of any of the terms of
such
covenants and obligations will cause the Investor irreparable injury
and
hence the Investors shall be entitled to specific performance of
the
obligations undertaken by the Company and/or the Promoters under
Clauses 3
and 4.
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5.
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COMPLETION
EVENTS
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(a)
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Upon
fulfillment of all the Conditions Precedent set out in the SSA, to
the
satisfaction of the Investor or if specifically waived in writing
by the
Investor, the Parties shall proceed to complete the allotment of
the
Portion of Subscription Shares to the Investor in the manner provided
in
this Clause.
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(b)
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At
Completion, the Company shall:
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·
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allot
and issue to the Investor,
the
Portion of Subscription
Shares;
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deliver
to the Investor
one
or more original share
certificates and other instruments, if any, evidencing the Investor’s title to
the
Portion of Subscription Shares;
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·
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duly
register, as required by Law,
the Portion of
Subscription Shares
in the Company's registers and provide evidence thereof to the Investor;
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(c)
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If
any one or more of the
Conditions Precedent set out in the SSA are not satisfied
to the
satisfaction of the Investor or waived in writing by the Investor,
the
Investor shall notify the Promoters and the Company of the non
satisfaction of the Condition Precedent. Within 7 days of receipt
of such
intimation from the Investor, the Promoters shall cause the Company
to and
the Company shall refund an amount equivalent to the Portion of
Subscription Price to the Investor. If the Company fails to make
repayment
of the Portion of Subscription Price to the Investor within 7 days
of
receipt of notice from the Investor, the Investor’s nominee shall, without
any further act or approval of the Promoters or the Company, issue
instructions to the Citibank N.A., to repatriate
funds lying in the
Account to the Investor and the Parties shall cause Citibank
N.A. to forthwith repatriate
such funds to the Investor.
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5
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(d)
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If
the funds lying in the Account
is less than the Portion of Subscription Price, the Promoters will
cause
the Company to fund the Account with such amount by which the funds
lying
in the Account fall short of the Portion of Subscription Price. If
the
Promoters fail to cause the Company to fund the shortfall in the
Portion
of Subscription Price, or upon the Promoters
and/or the
Company committing a breach of any of their obligations under this Agreement
and more
specifically under Clause 5 hereof and
failing to remedy the
breach within 7 days of being notified of the same by the
Investor, then,
without prejudice
to any of its
rights under this
Agreement, the
Investor shall have a right to forthwith exercise the pledge
and at
its discretion, require
the Board to allot to
itself, Portion of Subscription Shares andtake all necessary
action,to
be registered as a member of
the Company in respect of the Promoter Sharesand or Portion
of Subscription
Shares.
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(e)
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Upon
the Promoters and/or the
Company committing a breach of any of their obligations under Clause
5(d)hereof
and failing to remedy the
breach within 7 days of being notified of the same by the Investor
and the
Investor being unable to exercise the pledge and / or be registered
as a
member in respect of the Promoter Shares or any part thereof, due
to any
reason whatsoever, the Investor shall be entitled, pending subscription
to
the Subscription Shares, to be allotted
Portion of
Subscription Shares and to subscribe
to such number of
shares in the Company as will bring its
shareholding to 51% of the
paid up share capital of the Company as on such date (“Additional
Shares”). Upon exercise of such option by the Investor, and upon infusion
of funds by the Investor towards subscription to the Additional Shares,
the Company shall allot Additional Shares to the Investor and at
such
price as may be determined by the Investor, provided that the pricing
shall be in accordance with the laws of India.
Upon exercise of such option by
the Investor, the Investor shall be entitled to appoint majority
directors on the
Board and exercise all rights
available to the
Investor under law, as a 51% shareholder in the
Company.
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(f)
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The
Promoters and the Company
hereby undertake that they shall, upon exercise by the Investor of
its
right under Clauses 5(d)and
5(e)
above,
cooperate with the Investor
and take all necessary steps to ensure that the name of the Investor
or
any Person nominated by the Investor is registered as a ‘member’ in the
register of members of the Company in respect of the Promoter
Sharesand Additional
Shares.
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(h)
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In
the event of enforcement of
pledge by the Investor, of the Promoter Shares, or in the event of
the
Promoters committing a breach of any of their obligations of causing
the Company to perform
its obligations, or
in the event of subscription by the Investor, to Additional Shares,
in the
circumstances set out in Clause 5(e)above,
subject
to the rights available to
the Investor to appoint majority Directors on the Board and exercise
all rights
available
to the Investor under law, as a 51% shareholder in the Company, the provisions
of the
Shareholders Agreement will get triggered. However, notwithstanding
anything to the contrary contained in the Shareholders Agreement,
the Investor
shall
not be subject to any restrictions on transfer of Portion of Subscription
Shares
or Promoter Shares or
Additional Shares, whether set out in the Shareholders Agreement
or
otherwise and the provision of
this clause shall supersede anything to the contrary contained in
the
Shareholders
Agreement or under
any other agreement entered into between the Parties.However, the
Promoters and the
Company agree that they shall be bound by Clauses 6, 7, 8 and 9 of
the
Shareholders Agreement.
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6.
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BOARD
REPRESENTATION
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(a)
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The
Parties agree and acknowledge that the Investor shall be entitled
to
appoint one director on the Board effective upon Funding and that
such
director shall be appointed under Section 255(2) of the Act. The
Promoters
and the Company shall not be entitled to remove the Director
appointed/nominated by the Investor, unless required by Law.
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(b)
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The
right of nomination and appointment of the director conferred on
the
Investor under Clause 6(a) shall include the right at any time to
remove
from office any such persons nominated or appointed by them and from
time
to time determine the period for which such persons shall hold office
as
Director. If the Investor desires that any director nominated or
appointed
by it should cease to be a director of the Company, the Promoters
shall
cause, and shall exercise its voting rights in such manner, so as
to
ensure such removal and appointment of new director nominated by
the
Investor to replace the director so removed as soon as may be practicable.
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(c)
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The
director appointed/nominated by the Investor shall be entitled to
receive
all notices, agenda, etc. and to attend all General Meetings and
Board
Meetings and Meetings of any Committees of the Board of which they
are
members.
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(d)
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In
the event the Investor or any of its Affiliates cease to (i) be
shareholders of the Company, then all the rights of the Investor
as a
Shareholder shall automatically terminate and the Investor shall
cause his
nominee Director to resign from the Board.
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7.
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VALIDITY
OF
SSA
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(a)
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Except
to the extent specifically modified by this Agreement, all the terms
of
the SSA shall survive and continue to remain valid and binding on
the
Parties. Reference in the SSA to subscription to Investor Shares
or
Subscription Shares respectively, wherever they appear, shall be
deemed to
mean subscription to Investor Shares or Subscription Shares as
respectively reduced by the Portion of Subscription Shares and Additional
Shares and reference to payment of Investor Price or Subscription
Price,
respectively, wherever they appear in the SSA, shall be deemed to
mean
payment of Investor Price or Subscription Price as respectively reduced
by
the Portion of Subscription Price and price paid for the Additional
Shares.
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(b)
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This
Agreement shall become effective upon the execution and delivery
of this
Agreement by the Investor, the Promoters and the Company.
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(c)
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Except
as expressly set forth in this Agreement, all agreements, covenants,
undertakings, provisions, stipulations, and promises contained in
the SSA
are hereby ratified, readopted, approved, and confirmed and remain
in full
force and effect.
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8.
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RESOLUTION
OF
DISPUTES
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(a)
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Amicable
Settlement: 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.
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(b)
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Conciliation:
If the Parties are unable to amicably settle the Dispute in accordance
with Clause 8(a) 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 Xxxxxxx and Xx. X.X. Xxxxxxxxxx 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.
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(c)
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Arbitration:
If the Parties are unable to amicably settle the Dispute in accordance
with Clause 8(b) 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.
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(d)
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The
place of the arbitration shall be Mumbai, India.
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(e)
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The
arbitration proceedings shall be governed by the laws of India.
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(f)
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The
proceedings of arbitration shall be in the English language.
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(g)
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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.
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(h)
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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.
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(i)
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The
Mumbai court (including any appellant court) in India shall have
exclusive
jurisdiction.
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9.
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MISCELLANEOUS
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(a)
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No
Implied Waiver
|
Subject
to the terms of this Agreement, the execution, delivery and performance of
this
Amendment Agreement 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 SSA or prejudice any right or remedy
that either Party may have or may have in the future under or in connection
with
the SSA 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 SSA, the clauses on, including but not limited
to
indemnity and confidentiality shall survive the execution and delivery of this
Amendment Agreement and the effectiveness hereof.
|
|
(b)
|
Governing
law
|
This
Agreement shall be governed and construed in accordance with the laws of
India.
|
|
|
|
|
(c)
|
Costs
|
Each
Party shall bear its own expenses incurred in preparing this
Agreement. The Company shall pay the stamp duty and other costs in
respect of this Agreement and the issue and allotment of the Portion of
Subscription Shares to the Investor.
|
|
(d)
|
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.
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|
(e)
|
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, including its rights
over the pledge of Promoter Shares, to any of its Affiliates or its holding
company or ultimate parent company or their Affiliates, without the consent
of
the other Parties.
8
IN
WITNESS WHEREOF THE PARTIES TO THIS AMENDMENT AGREEMENT HAVE SET AND SCRIBED
THEIR HANDS AT MUMBAI, ON THE DAY MONTH AND YEAR FIRST NOTED ABOVE, IN PRESENCE
OF:
|
SIGNED
AND
DELIVERED
|
)
|
|
BY
THE WITHINNAMED "INVESTOR
"
|
)
|
|
)
|
|
|
ON
THE 19thDAY
OF DECEMBER,2007
|
)
|
|
IN
THE PRESENCE
OF:
|
)
|
|
WITNESS:
|
)
|
|
NAME
AND
ADDRESS:
|
)
|
|
SIGNED
AND
DELIVERED
|
)
|
|
BY
THE WITHINNAMED "COMPANY"
|
)
|
|
BY
THE HAND OF
Mr.
|
)
|
|
X.
X. SRIVASTAVAPURSUANT TO
THE
|
)
|
|
RESOLUTION
PASSED BY THE
BOARD
|
)
|
|
ON
THE 17th DAY
OF DECEMBER,2007
|
)
|
|
IN
THE PRESENCE
OF:
|
)
|
|
WITNESS:
|
)
|
|
NAME
AND
ADDRESS:
|
)
|
|
SIGNED
AND
DELIVERED
|
)
|
|
BY
XX.
X. X. XXXXXXXXXX FOR
HIMSELF AND ON BEHALF
OFTHE "Promoters"
|
)
|
|
)
|
|
|
ON
THE 19th DAY
OF DECEMBER,2007
|
)
|
|
IN
THE PRESENCE
OF:
|
)
|
|
WITNESS:
|
)
|
|
NAME
AND
ADDRESS:
|
)
|
9
SCHEDULE
1
NAME
AND DETAILS OF
PROMOTERS
|
Name
of
Shareholder
|
Number
of
Shares
|
%
shareholding on a Fully Diluted
Basis
|
|
Xxxxxxxx
Xxx
Srivastava
|
1579711
|
53.88
|
|
Indravati
Devi Srivastava
|
1152640
|
39.31
|
|
Xxxxxxx
Xxxxxx Xxxxxxxxxx
|
00000
|
3.30
|
|
Bihari
Xxx Xxxxxxxxxx
|
16000
|
0.55
|
|
Xxxxxxxxx
Xxx Srivastava
|
55168
|
1.88
|
|
Ramdulari
Devi Srivastava
|
32000
|
1.09
|
|
Total
|
2932159
|
100
|
10
SCHEDULE
2
FORM
OF POWER OF
ATTORNEY
TO
ALL TO WHOM THESE PRESENTS SHALL
COME, I, Xxxxxxxx Xxx
Srivastava, an Indian
inhabitant having my address at Sricon Xxxxx 00, Xxxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx, Xxxxx (the
“Pledgor”) SEND GREETINGS:
And
Whereas the Pledgor is the legal and
beneficial owner of 15,79,711 Equity Shares (“Equity
Shares”) of
Sricon
Infrastructure Private
Limited, a company registered
under the Companies Act, 1956 and having its registered office at Sricon
Xxxxx 00, Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx, Xxxxx (the “Company”) having full legal
right, title and interest in those Equity Shares with power to deal with such
Equity Shares in any manner the Pledgor thinks fit.
And
Whereas the Pledgor, the Company and
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 (“Pledgee”) have entered into an Amendment Agreement
dated December 19, 2007 (“Amendment
Agreement”),
pursuant to which the
Investor has agreed to
subscribe
to Portion of Subscription
Shares
(as defined in the
Amendment
Agreement).
And
Whereas the Pledgor along with the
other Promoters of the Company (as defined in the Amendment Agreement)
have undertaken
to cause the Company to
perform certain obligations under the AmendmentAgreement.
And
Whereas the Pledgor has secured the
performance by it of
its
obligations to cause the Company to do certain acts, by pledging and creating
a charge on
15,79,711Equity Shares of
the Company held by the
Promoters (hereinafter
referred to as the “Pledged Shares”).
Pursuant
to Clause 4(c) of
the Amendment Agreement,
the Pledgor has undertaken
and agreed to irrevocably appoint the Pledgee as its attorney-in-fact to
take all necessary action
and sign all necessary documents, letters, undertakings etc. as may be required
so as to effect a transfer of the Pledged Shares to the Pledgee or any of his
nominees. In pursuance of
the above, the Pledgor is desirous of appointing the Pledgee as its
Attorney.
Capitalized
terms not defined herein
shall have the meanings ascribed to them in the Amendment Agreement.
|
|
NOW
KNOW YE ALL AND THESE PRESENTS
WITNESS THAT
|
The
Pledgor does hereby irrevocably
nominate, constitute and appoint the Pledgee (i.e. INDIA GLOBALISATION CAPITAL,
INC. a company organised under the laws of the State of Maryland acting directly or indirectly
through
one or more of its newly formed non US Affiliates, alongwith such newly formed
non-US Affiliates, and
having its office address at 0000
Xxxxxxxxxx Xxxxxx Xxxxxxxx, XX 00000, or any hereinafter
referred to as Attorney) to
be the true and lawful Attorney of the Pledgor and in his name and on his behalf
and at his risk and costs, to do or cause to be done the following acts, deeds,
matters or things, that is to say:
|
1.
|
at
any time, to take any action
and execute any instrument, deed, document, undertaking etc. that
the
Attorney may deem necessary or advisable to keep the charge or pledge
created over the Pledged Shares secured and in full force and
effect.
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11
|
2.
|
at
any time after the Pledgor
and/or the Company commit a breach of the provisions of the Amendment Agreement,
in the opinion of the
Investor:
|
|
a)
|
to
execute any instrument, deed, document, undertaking including necessary
transfer forms as transferor in respect of all the Pledged Shares
in the
name of the Pledgor including revalidation of blank transfer forms
duly
signed by the Pledgor in respect of the Pledged Shares so as to effect
a
transfer of the Pledged Shares to the Pledgee or its nominee, as
the case
may be, and to ensure that the name of the Pledgee and/or its nominee
is
incorporated in the ‘register of members’ as a ‘member’ in respect of the
Pledged Shares;
|
|
b)
|
to
sign on behalf of the Pledgor
the consent letter in the form as set out herein;
|
|
c)
|
to
vote at all or any meetings of
the shareholders of the Company or otherwise to act as the Pledgor’s
attorney or attorney’s representative(s) or proxy(ies) in respect of the
Pledged Shares; and
|
|
d)
|
to
appoint any proxy (ies) to
represent the Pledgor at all or any meetings of
the shareholders of the Company with full authority to vote at
such meetings in such manner as the Attorney may deem
fit.
|
|
3.
|
at
any time, to make such
declaration in respect of the Pledged Shares as may be in the opinion
of
the said Attorney required or necessary in
law.
|
|
4.
|
at
any time, to enter into, make, sign, execute, deliver, acknowledge
and
perform all engagements, contracts, agreements, indentures, papers,
documents, writings, things, deeds etc. that may be necessary or
proper to
be entered into and signed, sealed, executed, delivered, acknowledged
and
performed for the purposes of giving effect to the transfer of the
Pledged
Shares to the Pledgee and/or its
nominee.
|
|
5.
|
at
any time, to offer the Pledged Shares for dematerialisation or
rematerialisation pursuant to the Xxxxxxxxxxxx Xxx, 0000 and the
rules
made and to obtain registration of the names of the beneficial owners
thereof in the records of the Depository or any other intermediary,
and to
do all acts, deeds and things, and to execute and deliver all deed,
documents and writing in order to obtain and implement dematerialisation
or rematerialisation of the Pledged
Shares.
|
|
6.
|
to
act in relation to these
premises as fully and effectually in all respects as we the Pledgor
ourselves could do if personally
present.
|
AND
WE HEREBY agree to ratify and
confirm all and whatsoever our said Attorney shall do or purport to do or cause
to be done by virtue of these presents.
AND
WE HEREBY declare that this Power of
Attorney is and shall be irrevocable until the complete transfer of all the
Promoter Shares
from
the Promoters
to the Investor
in accordance with the
Amendment Agreement.
IN
WITNESS WHEREOF the Pledgor has
caused this Power of Attorney to be executed by its duly authorized signatory
on
the day, month and year first above written.
SIGNED
AND DELIVERED BY [Insert name of
each Promoter whose Shares are being pledged].
NOTARY
12
SCHEDULE
2A
SPECIMEN
FORM OF CONSENT LETTER OF PROMOTERS
[On
the letterhead of the Promoters]
[Insert
Date]
Dear
Sir,
|
Re:
|
Acquisition
of
15,79,711 equity shares of Sricon Infrastructure Private Limited
(“Company”) by India Globalisation Capital, Inc. (“Purchaser”) from Indian
resident shareholders
|
I
hereby
accord my consent for the transfer of 15,79,711 equity shares held by me in
Company to the Purchaser at a price of Rs. 254.84/- per share.
I
request
you to kindly take the above 'no objection' on record.
Yours
faithfully,
[Name
of Promoter]
13
