Exhibit 2.1
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GDR PURCHASE AGREEMENT
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This GDR Purchase Agreement (this "Agreement") is made on this 2nd day of
November, 2007 ("Effective Date"):
BY AND BETWEEN:
1. Global EPC Ventures Limited, a company incorporated under the laws of
British Virgin Islands, having its registered office at British Virgin
Islands (hereinafter referred to as the "Seller", which expression
shall, unless repugnant to the context or meaning thereof, be deemed to
include their respective successors and permitted assigns); and
2. COPYTELE INTERNATIONAL LTD., a company incorporated under the laws of
the British Virgin Islands and having its registered office at Icaza
Xxxxxxxx-Xxxx & Xxxxxx, (BVI) Trust Limited, Xxxxxxxxxx Plaza, Second
Floor, Xxxxxxx Xxx 1, Road Town, Tortola, British Virgin Islands,
(hereinafter referred to as the "Purchaser", which expression shall,
unless repugnant to the context or meaning thereof, mean and include
its successors and permitted assigns).
(The Seller and the Purchaser will be hereinafter referred to collectively as
the "Parties" and individually as a "Party").
WHEREAS:
A. The Seller is in the process of acquiring 1,495,845 global depository
receipts of Videocon Industries Ltd. ("Sale GDRs") from the open
market.
B. The Purchaser is desirous of purchasing the Sale GDRs and the Seller
has agreed to sell the Sale GDRs to the Purchaser in accordance with
the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, the Parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless repugnant to the context or meaning thereof,
the following capitalized terms shall have the following meanings:
(a) "Completion" shall mean the completion of the Transaction in
accordance with the terms of this Agreement;
(b) "Person" shall mean any natural person, firm, company,
governmental authority, joint venture, association,
partnership or other entity (whether or not having separate
legal personality);
(c) "Purchase Consideration" has the meaning ascribed to such
term in Clause 2.1 herein; and
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(d) "Transfer" shall mean and include any direct or indirect
sale, assignment, lease, transfer, pledge, gift, encumbrance
or other disposition of or the subjecting to an encumbrance
of, any property, asset, right or privilege or any interest
therein or thereto.
1.2 In this Agreement:
(a) Words importing the singular include the plural and vice
versa.
(b) The words "include" and "including" are to be construed
without limitation.
(c) Reference to statutes shall include any modification or
amendment thereto and re-enactment or extension thereof for
the time being in force.
(d) Headings and bold typeface are only for convenience and shall
be ignored for the purpose of interpretation of this
Agreement.
2. SALE AND PURCHASE
2.1 The Purchaser hereby agrees to purchase from the Seller and the Seller
hereby agree to sell to the Purchaser, as legal and beneficial owners,
the Sale GDRs together with all rights, title and interest therein, at
a price of US$ 10.83 per Sale GDR amounting to a total aggregate
consideration of US$16,200,000 (Sixteen Million Two Hundred Thousand US
Dollars) (the "Purchase Consideration"), free from all encumbrances and
together with all rights, interest and benefits appertaining to the
Sale GDRs (the "Transaction").
2.2 The transactions shall be completed on or before 30th day from the date
of execution of this Agreement, as set out in clause 4 hereunder.
2.3 The Seller hereby agrees and undertakes that, until Completion, the
Seller shall not Transfer any interest or create any encumbrance on any
of the Sale GDRs held by them.
2.4 At the request of the Seller, the Purchaser shall on November 6, 2007,
cause the Purchase Consideration to be paid by way of advance to the
Seller, by issuing irrevocable instructions to its bank, ICICI Bank UK
plc, London, to transfer the Purchase Consideration to the Seller's
bank accounts, as per the details given in Schedule I attached
herewith, and furnish a copy of such instructions, duly acknowledged by
Purchaser's bank, to the Seller. Seller shall hold the Purchase
Consideration advanced by Purchaser separate from Seller's other funds
and shall use the Purchase Consideration advanced by Purchaser for the
sole purpose of acquiring the Sale GDRs.
2.5 If Completion and the transfer of all of the Sale GDRs to Purchaser as
provided herein does not occur on or before the 30th day after the date
of execution of this Agreement, then, immediately after the 30th day
after the date of execution of this Agreement, the Seller shall cause
all of the Purchase Consideration advanced to Seller pursuant to Clause
2.4 to be returned to the Purchaser by issuing irrevocable instructions
to Seller's bank to transfer the Purchase Consideration to Purchaser's
account at ICICI Bank UK plc, London, and to furnish a copy of such
instructions, duly acknowledged by Seller's bank, to the Purchaser.
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3. CONDITIONS PRECEDENT
3.1 The obligation of the Purchaser to purchase the Sale GDRs is subject to
the fulfillment, prior to or simultaneously on the Completion Date, of
all of the following conditions ("Conditions Precedent") and delivery
and execution of the following items in a form and substance
satisfactory to the Purchaser, unless any one or more of the following
is waived in writing by the Purchaser:
(a) Completion of the purchase of the Sale GDRs by the Seller;
(b) The Parties shall have duly attended to and carried out all
corporate procedures that are required under applicable law
in connection with this Agreement and the completion of the
Transaction contemplated herein, including approval from the
board of directors and shareholders, as may be required, for
the execution, delivery and performance by the Parties of
this Agreement.
4. COMPLETION
4.1 Completion shall take place within a period of Thirty (30) days from
the date of execution of this Agreement ("Completion Date") or on such
other date as may be agreed to between the Parties in writing.
4.2 At Completion, the following shall occur simultaneously and no such
transaction shall be consummated unless all such transactions are
consummated:
(a) The Seller shall deliver to the Purchaser the original
document/slip/receipt evidencing holding of the Sale GDRs by
the Seller as well as evidence that the Seller are the owners
and are absolutely entitled to the Sale GDRs, in a form and
manner as required by the Purchaser.
(b) The Seller shall sign the required transfer
slips/receipt/transfer documents for effecting and evidencing
the transfer of the Sale GDRs and forward the same to the
concerned depository in order to get the Sale GDRs
transferred in the name of the Purchaser and enter the name
and other details of the Purchaser as the holder of the Sale
GDRs in all relevant records.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party hereby make the following representations and warranties to
the other Party, each of which is true and correct in all material
respects as of the Effective Date and will be true and correct in all
material respects as of the Completion Date:
(a) this Agreement is being executed by an officer of such Party,
duly authorized by the Board to enter into this Agreement,
and no further corporate proceedings of such Party are
necessary in law, or otherwise, for the execution, delivery,
and performance of this Agreement;
(b) it has full corporate power and authority to execute and
deliver this Agreement and to perform all of its duties,
obligations and responsibilities arising or created under
this Agreement. This Agreement when executed and delivered by
such Party shall constitute valid and legally binding
obligations of such Party, enforceable in accordance with its
terms;
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(c) the execution, delivery and performance of this Agreement by
such Party will not, conflict with, result in a breach of or
default under any applicable law or regulation, or any order,
writ, injunction or decree of any court or governmental
authority, or any agreement, arrangement or understanding,
written or oral, to which such Party is a party or by which
such Party or any of its assets are bound; and
(d) there is no litigation pending or, to the best of its
knowledge, threatened against it, which questions the
validity or enforceability of this Agreement or any of the
transactions contemplated herein.
5.2 In addition, the Seller hereby makes the following representations and
warranties to the Purchaser, clauses 5.2(f) and (g) of which are true
and correct in all material respects as of the Effective Date and all
of which will be true and correct in all material respects as of the
Completion Date:
(a) the Seller is fully entitled and authorized to acquire and
sell the Sale GDRs in the manner and upon the terms and
conditions contained in this Agreement;
(b) the Seller is the absolute legal and beneficial owner, free
of all encumbrances, of the Sale GDRs, has validly acquired
and is authorized to validly hold the Sale GDRs and all
relevant approvals, permits and authorizations in this regard
have been obtained and are currently in force and effect;
(c) the Sale GDRs are freely transferable by the Seller in
accordance with the terms and conditions of this Agreement
and are not subject to any pre-emption rights, lock-in, non
disposal obligations or rights of first refusal for transfers
thereof in favour of any Person, whether contractual or
otherwise;
(d) there are no options, agreements or understandings
(exercisable now or in the future and contingent or
otherwise) which entitle or may entitle any Person to create
or require to be created any encumbrance over any of the Sale
GDRs held by the Seller;
(e) the Purchaser will acquire a valid and marketable title to
the Sale GDRs held by the Seller and the Sale GDRs to be
delivered by the Seller to the Purchaser pursuant to this
Agreement will be, when delivered, duly authorized, validly
issued, fully paid-up and will be free and clear of all
encumbrances and third party rights and interests;
(f) the Seller is a company duly organized and validly existing
under the laws of Cayman Islands and has full power and
authority to enter into this Agreement and has taken all
necessary corporate approvals (including Board and
shareholders approval, if applicable), approvals of lenders,
and any other consents, approvals and authorizations for the
execution, delivery, and performance of this Agreement;
(g) the Purchaser has no liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to
the transactions contemplated by this Agreement.
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5.3 In addition, the Purchaser hereby makes the following representations
and warranties to the Seller, all of which are true and correct in all
material respects as of the Effective Date and will be true and correct
in all material respects as of the Completion Date: the Purchaser is a
company duly organized and validly existing under the laws of the
British Virgin Islands and has full power and authority to enter into
this Agreement and has taken all necessary corporate approvals
(including Board and shareholders approval, if applicable), approvals
of lenders, and any other consents, approvals and authorizations for
the execution, delivery, and performance of this Agreement.
6. INDEMNITY
6.1 Without prejudice to the other rights of the Purchaser, the Seller
agrees to indemnify, defend and hold harmless the Purchaser, its
shareholders, its affiliates and their respective directors, officers,
representatives, employees and agents (the "Indemnified Persons") from
and against any and all claims, actions, demands, losses, damages,
liability and judgements including such costs, attorney's fees and
expenses as may be awarded by a court/arbitral tribunal (collectively
"Damages"), incurred by the Purchaser, as a result of, arising from, or
in connection with or relating to any matter inconsistent with, or any
breach or inaccuracy of any representation, warranty, covenant or
agreement made or failure to perform (whether in whole or part) any
obligation required to be performed by the Seller pursuant to this
Agreement.
7. CONFIDENTIALITY
7.1 The Seller shall keep all information relating to the other Party,
information relating to the Transaction and the Agreement (collectively
referred to as the "Information") confidential. The Seller shall not
issue any public release or public announcement or otherwise make any
disclosure concerning this Agreement, the other Transaction Documents
and/or the Transaction, without the prior approval of the other
Parties.
7.2 Except for the press release to be issued by the Purchaser or
Purchaser's parent entity and the required disclosures to be filed with
the US Securities and Exchange Commission, no other press release,
notice, disclosure or any other publicity concerning the proposed
transaction shall be issued, given or disseminated by the aforesaid
without the prior written approval of the other.
7.3 Notwithstanding anything contained herein above, nothing contained
herein shall affect the ability of the Purchaser to:
(a) disclose information relating to the Transaction to its
employees, directors or professional advisers including to
its affiliates or investors;
(b) disclose information to any of the regulatory authorities or
other person pursuant to the terms of applicable law, any
press release as may be statutorily required and in the
Web site of the Purchaser,
(c) to the extent that such Information is in the public domain
other than by breach of this Agreement;
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(d) to the extent that any of such Information is / are later
acquired by the Purchaser from a source not obligated to any
other Party hereto, or its affiliates, to keep such
Information confidential;
(e) to the extent that any of such Information was previously
known or already in the lawful possession of the Purchaser,
prior to disclosure by any other Party hereto; and
(f) to the extent that any information, materially similar to the
Information, shall have been independently developed by the
Purchaser without reference to any Information furnished by
any other Party hereto,
without obtaining the prior written consent of the Seller.
8. COSTS AND EXPENSES
8.1 Each Party agrees that it shall bear by itself all costs and expenses
incurred by it in connection with any discussions, negotiations and
investigations undertaken in connection with the subject matter hereof,
including without limitation costs and expenses associated with
retention of financial, legal, tax and other professional advisers.
8.2 All costs and expenses in relation to and for the consummation of the
Transaction including the expenses relating to transfer of the Sale
GDRs and other charges payable in respect of the transfer of the Sale
GDRs and the execution of the Agreement shall be borne by the Seller.
9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1 Governing Law
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This Agreement and all matters relating hereto, shall be governed by
England.
9.2 Dispute resolution
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(a) In the event any Party is in breach of any of the terms of
this Agreement, another Party may serve written notice to
require the Party in breach to cure such breach within thirty
(30) days of the receipt of such written notice thereof.
(b) In the case of any dispute or claim arising out of or in
connection with or relating to this Agreement, or the breach
(where such breach has not been cured by the Party in breach
within thirty (30) days of a written notice thereof),
termination or invalidity hereof, the Parties shall attempt
to first resolve such dispute or claim through discussions
between senior executives of the Investor.
(c) If the dispute is not resolved through such discussions
within thirty (30) days after one Party has served a written
notice on the other Party requesting the commencement of
discussions, dispute or claim shall be finally settled by
arbitration under the United Nations Commission on
International Trade Law Arbitration Rules (the "UNCITRAL
Rules") as are in force at the time of any such arbitration.
For the purpose of such arbitration, there shall be one
arbitrator jointly appointed by the Parties, failing which
there shall be three (3) arbitrators in accordance with the
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UNCITRAL Rules (the "Arbitration Board"). The Company shall
appoint one arbitrator, and the Investor shall appoint one
arbitrator. The two arbitrators shall then jointly appoint a
third arbitrator, who shall serve as Chairman of the
Arbitration Board.
(d) All arbitration proceedings shall be conducted in the English
language and the place of arbitration shall be in London,
England, United Kingdom.
(e) Each Party shall co-operate in good faith to expedite (to the
maximum extent practicable) the conduct of any arbitral
proceedings commenced under this Agreement.
(f) The costs and expenses of the arbitration, including, the
fees of the third arbitrator on the Arbitration Board, shall
be borne equally by each Party to the dispute or claim and
each Party shall pay its own fees, disbursements and other
charges of its counsel and the arbitrators nominated by it,
except as may be otherwise determined by the Arbitration
Board. The Arbitration Board would have the power to award
interest on any sum awarded pursuant to the arbitration
proceedings and such sum would carry interest, if awarded,
until the actual payment of such amounts.
(g) Any award made by the Arbitration Board shall be final and
binding on each of the Parties that were parties to the
dispute.
10. NOTICES
10.1 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant
Party at its address or fax number set out below (or such other address
or fax number as the addressee has by seven (7) Business Days' prior
written notice specified to the other Parties). Any notice, demand or
other communication given or made by letter between countries shall be
delivered by registered airmail or international courier service. Any
notice, demand or other communication so addressed to the relevant
Party shall be deemed to have been delivered (a) if delivered in person
or by messenger, when proof of delivery is obtained by the delivering
Party, (b) if sent by post within the same country, on the fifth day
following posting, and if sent by post to another country, on the tenth
day following posting, and (c) if given or made by fax, upon dispatch
and the receipt of a transmission report confirming dispatchAny notice
or other communications required or permitted hereunder to any party
shall be in writing and shall be sufficiently given if personally
delivered or sent by overnight courier, first class mail - postage
prepaid or transmitted by facsimile (with confirming copy sent by
airmail) or other form of recorded communication such as electronic
mail:
10.2 The initial address and facsimile for the Parties for the purposes of
the Agreement are:
If to the Purchaser:
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Name : CopyTele International Ltd.
Address : c/o CopyTele, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
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Attention : Xx. Xxxxx X. Xxxxxx
Facsimile : 000-000-0000
Telephone : 000-000-0000
If to the Seller:
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Name : Global EPC Ventures Limited
Address : X.X. XXX 000, Post code 124, Rusayl Industrial
Area, Sultanate of Oman
Attention : Xx. Xxxxxx Xxxxx
Facsimile : 0000 000000000
Telephone : 0000 000000000
11. MISCELLANEOUS
11.1 Nature of Agreement
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It is understood that the Purchaser and the Seller are independent
entities engaged in the conduct of their respective businesses. This
Agreement shall not constitute them as the agent or partner of each
other for any purpose whatsoever.
11.2 Amendment
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No modifications or amendment of this Agreement and no waiver of the
terms or conditions hereto shall be binding unless made specifically in
writing duly executed by the authorised representative of the Parties.
11.3 Severability
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If any provision of this Agreement is invalid or unenforceable or
prohibited for any reason, this Agreement shall be considered divisible
as to such provision which shall be inoperative and shall not be part
of the consideration moving from either of the Parties hereto to the
other and the remainder of this Agreement shall be valid and binding.
11.4 Waivers
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No waiver of any provision of this Agreement shall be effective unless
set forth in a written instrument signed by the Party waiving such
provision. No forbearance, indulgence or relaxation of any party at any
time to require performance of any provision of this Agreement shall in
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any way affect, diminish or prejudice the right of such Party to
require performance of the same provision and any waiver or
acquiescence by any Party of any breach of any provision 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
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 and/or position other than as expressly
stipulated in this Agreement.
11.5 Specific Performance
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The Parties agree that the Purchaser shall be entitled to an
injunction, restraining order, right for recovery, suit for specific
performance or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain the Seller
from committing any violation or to enforce the performance of the
covenants, representations and obligations contained in this Agreement.
These injunctive remedies are cumulative and are in addition to any
other rights and remedies the Parties may have at law or in equity.
11.6 Exclusion
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This Agreement is personal to the Parties hereto and the rights and
obligations arising hereunder shall not be assignable by them except
with the prior written consent of the other Parties hereto.
11.7 Counterparts
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This Agreement may be executed in one or more counterparts and all such
counterparts shall together constitute one agreement binding on all the
parties notwithstanding that all of the Parties are not signatories to
the original or same counterpart.
11.8 No Agency
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No Party shall act as an agent of the other Parties or have any
authority to act for or to bind the other Parties.
11.9 Entire Agreement
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This Agreement constitutes the whole agreement between the Parties
relating to the subject matter hereof and supersedes any prior
agreements or understandings relating to such subject matter.
11.10 No Assignment
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Subject to the provisions of this Agreement, this Agreement is personal
to the Company and the Seller and shall not be capable of assignment.
Notwithstanding the aforesaid, the Purchaser may assign any of its
rights under this Agreement to any Person.
11.11 No Third Party Beneficiaries
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This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement
(except as provided in Clause 6) under the Contracts (Rights of Third
Parties) Xxx 0000 or otherwise.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
FOR AND ON BEHALF OF
GLOBAL EPC VENTURES LIMITED
By: /s/ Xxxxxx Xxxxx
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Name: XXXXXX XXXXX
Title: AUTHORISED SIGNATORY
COPYTELE INTERNATIONAL LTD.
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X XXXXXX
Title: CHAIRMAN & CEO
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