SECOND AMENDMENT TO THE IMPLEMENTATION AGREEMENT
Exhibit 4.37
SECOND AMENDMENT TO THE IMPLEMENTATION AGREEMENT
This Second Amendment Agreement (the “Second Amendment Agreement”) to the implementation agreement dated 25 April 2018, as amended by the first amendment to the implementation agreement dated August 31, 2020 (“Implementation Agreement”), is entered into on November 19, 2020 at New Delhi, India, among:
| (1) | BHARTI INFRATEL LIMITED, a company incorporated in India under the Companies Xxx, 0000, and having its registered office at 000, Xxxx Xxxxxx, Xxxxxx – 30, NH – 8, Gurugram, Haryana – 122001, India and corporate office at Xxxxxx Xxxxxxxx, 0 Xxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxx XX, Xxx Xxxxx – 110 070, Delhi, India (“BIL”); |
| (2) | THE PERSONS LISTED IN PART A OF SCHEDULE 1 OF THE IMPLEMENTATION AGREEMENT (collectively, the “VIL Promoters”); |
| (3) | THE PERSONS LISTED IN PART B OF SCHEDULE 1 OF THE IMPLEMENTATION AGREEMENT (collectively, the “BIL Promoters”); |
| (4) | VODAFONE IDEA LIMITED, a company incorporated in India under the Companies Xxx, 0000, and having its registered office at Xxxxx Xxxxx, Xxxx Xx. 00, Xxxxxx –11, Gandhinagar – 382 011, Gujarat, India (“Vodafone Idea”); |
| (5) | INDUS TOWERS LIMITED, a company incorporated in India under the Companies Xxx, 0000, and having its registered office at Building Xx.00, Xxxxx-X, 0xx Xxxxx, XXX Xxxxx Xxxx, Xxxxxxxx 000000, Xxxxxxx, Xxxxx (“Indus”); and |
| (6) | VODAFONE INTERNATIONAL HOLDINGS B.V., a company incorporated in the Netherlands, and having its registered office at Xxxxxx Xxxxxxxx 000, 0000 XX Xxxxxxx aan den IJssel, the Netherlands (“Vodafone Confirming Party”). |
BIL, the VIL Promoters, the BIL Promoters, Vodafone Idea and Indus are collectively referred to as the “Parties” and individually as a “Party”.
WHEREAS:
| (A) | The Parties have entered into the Implementation Agreement in connection with the proposed merger of Indus with BIL through a scheme of amalgamation and arrangement under Sections 230 to 232 of the Act (the “Merger Scheme”), which prescribes certain conditions precedent for the Merger Scheme to become effective. |
| (B) | The Parties have now agreed certain revised terms and conditions on which the Transaction will be undertaken and implemented and are entering into this Second Amendment Agreement to make necessary amendments to the Implementation Agreement in accordance with Clause 16.5 of the Implementation Agreement. |
| (C) | Capitalised words and expressions used but not defined herein shall have the same meaning as assigned to them under the Implementation Agreement and references to Clauses shall mean Clauses of the Implementation Agreement. |
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NOW THEREFORE THE PARTIES HEREBY AGREE TO AMEND THE IMPLEMENTATION AGREEMENT AS FOLLOWS:
| 1. | AMENDMENTS TO THE IMPLEMENTATION AGREEMENT |
| (a) | In Clause 1.1 (Definitions), the definition of “BIL EBITDA” shall be, and is hereby, substituted in its entirety by the following |
““BIL EBITDA” means the sum of INR 31,335 million (Rupees thirty one thousand three hundred and thirty five million) for BIL on a standalone basis and 42% of the Indus EBITDA, as increased by an addition of 50% of INR 221 million being the amount of provision for doubtful debts within BIL standalone EBITDA as at 31 March 2020.”
| (b) | In Clause 1 of Schedule 9, the definition of “BIL Sale EBITDA” shall be, and is hereby, substituted in its entirety by the following |
“BIL Sale EBITDA” means the sum of INR 31,335 Million (Rupees thirty one thousand three hundred and thirty five million) for BIL on a standalone basis and 42% of the Indus Sale EBITDA, as increased by an addition of 50% of INR 221 Million being the amount of provision for doubtful debts within BIL standalone EBITDA as at 31 March 2020.”
| (c) | In Paragraph 2.2 of Part B of Schedule 4 (Pre-Closing Adjustments) to the Implementation Agreement, the following adjustment (l) shall be, and is hereby, inserted after (k): |
“(l) An asset shall be recognised of an amount of INR 522 Million as provision for doubtful debts (“PDD”) as of September 30, 2020 (BIL standalone basis) for Airtel and Vodafone Idea”
| (d) | In Paragraph 3.2 of Part B of Schedule 4 (Pre-Closing Adjustments) to the Implementation Agreement, the adjustment (e) shall be, and is hereby, substituted in its entirety by the following. |
“(e) An asset shall be recognised of an amount of INR 3,792 Million as provision for doubtful debts (“PDD”) as of September 30, 2020 for Airtel and Vodafone Idea”
| (e) | In Paragraph 2.2 of Part B of Appendix A of Schedule 9 (Terms and Conditions Applicable to Idea Cash Election) to the Implementation Agreement, the adjustment (d) shall be, and is hereby, substituted in its entirety by the following. |
“(d) An asset shall be recognised of an amount of INR 3,792 Million as provision for doubtful debts (“PDD”) as of September 30, 2020 for Airtel and Vodafone Idea”
| (f) | In Paragraph 2.2 of Part C of Appendix A of Schedule 9 (Terms and Conditions Applicable to Idea Cash Election) to the Implementation Agreement, the following adjustment (k) shall be, and is hereby, inserted after (j). |
“(k) An asset shall be recognised of an amount of INR 522 Million as provision for doubtful debts (“PDD”) as of September 30, 2020 (BIL standalone basis) for Airtel and Vodafone Idea”
| (g) | Clause 6.5.3 (Key Employees) shall be, and is hereby, substituted in its entirety by the following. |
“Xxxxxx Xxxxx shall be appointed as the Chief Financial Officer of the Merged Entity with effect from the Closing Date.”
| 2. | FULL FORCE AND EFFECT |
This Second Amendment Agreement shall be effective from the date hereof, and shall be read together with, and as a part of, the Implementation Agreement. Except as amended hereby, all of the terms and conditions of the Implementation Agreement shall remain in full force and effect.
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| 3. | COUNTERPARTS |
This Second Amendment Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument, but shall not be effective until each Party has executed at least one counterpart. Further, the delivery of a PDF format copy of an executed signature page with the same force and effect as the delivery of an originally executed signature page.
| 4. | GOVERNING LAW AND DISPUTE RESOLUTION |
This Second Amendment Agreement shall be governed by and construed in accordance with Laws of India. Any dispute or difference arising out of or in connection with this Second Amendment Agreement shall be resolved in the manner provided in Clauses 16.8 (Consultation) and 16.9 (Arbitration) of the Implementation Agreement, mutatis mutandis.
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In witness whereof, this Second Amendment Agreement has been entered into on the date and year first above written.
For and on behalf of Bharti Infratel Limited
| /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |
| Title: Chairman |
For and on behalf of Bharti Airtel Limited
| /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |
| Title: |
For and on behalf of Nettle Infrastructure Investments Limited
| /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |
| Title: |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of Xx-Xxxx Investments Limited
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of Asian Telecommunication Investments (Mauritius) Limited
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of CCII (Mauritius), Inc.
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of Euro Pacific Securities Ltd
| /s/ Gerhardus A van Niekerk |
|
| Name: Gerhardus A van Niekerk | |
| Title: Director |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of Vodafone Telecommunications (India) Limited
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of Mobilvest
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of Prime Metals Ltd
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
For and on behalf of Trans Crystal Ltd
| /s/ Gerhardus A van Niekerk | |
| Name: Gerhardus A van Niekerk | |
| Title: Director |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of Omega Telecom Holdings Private Limited
| /s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | |
| Title: Director |
For and on behalf of Xxxx Xxxxxx Telematics Limited
| /s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | |
| Title: Director |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of
Vodafone Idea Limited
| /s/ Xxxxxxxx Xxxxxx | |
| Name: | |
| Title: |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of Indus Towers Limited
| /s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | |
| Title: Chief of Legal & Company Secretary |
[Signature Page to the Second Amendment to the Implementation Agreement]
For and on behalf of Vodafone International Holdings B.V.
| /s/ M Buckers | /s/ L.R.M. Kraan | ||
| Name: M Buckers | Name: L.R.M. Kraan | ||
| Title: Director | Title: Director |
[Signature Page to the Second Amendment to the Implementation Agreement]
