SHARE PURCHASE AGREEMENT
between
REALTIME HOLDINGS PRIVATE LIMITED,
as Seller
And
DISTINCTIVE DEVICES (INDIA) PRIVATE LIMITED,
as Buyer
Dated: 6th December, 2002
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT, made this the 6th day of December, 2002, in New
Delhi by and between:
REAL TIME HOLDINGS PRIVATE LIMITED, a company incorporated under the Companies'
Act, 1956 and having its registered office at X-00, Xxxxx Xxxxxxxxxx Xxxx, Xxxxx
- 0, Xxx Xxxxx 110 020, (hereinafter referred to as RTHPL) and represented
jointly by Xx. X.X. Xxxxx and Xx. Xxxxxx Xxxxxx, Directors referred to
hereinafter as the "Seller",
AND
DISTINCTIVE DEVICES (INDIA) PRIVATE LIMITED, a company incorporated under the
Companies' Act, 1956 and having its registered office at 4th Floor, Shri
Vishwashwar Bhawan, Sanyas Ashram Road, Vile Road (West), Mumabi-400 056.,
(hereinafter referred to as DDIPL) and represented by Xx. Xxxxxx X. Xxxx,
Director, referred to hereinafter as the "Buyer".
RECITALS
--------
A. WHEREAS REAL TIME SYSTEMS LIMITED (hereinafter referred to as RTS) is a
company incorporated under the Companies' Act, 1956 and having its
registered office at A-235. Xxxxx Xxxxxxxxxx Xxxx, Xxxxx - x, Xxx Xxxxx
110 020.
B. WHEREAS the Seller is the majority shareholder of the entire paid up
capital of RTS, as on date by virtue of holding 99.99% of the paid up
capital of RTS.
C. WHEREAS the Seller had approached the Buyer to buy out its entire
equity share holding of RTS and the Buyer had agreed to the same to
acquire by itself the entire shares of RTS held by the Seller.
D. NOW, THEREFORE in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of the parties
hereto, intending to be bound, hereby agree to regulate the exercise of
their rights in relation to each other as follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATIONS
1.1. DEFINITIONS
For the purposes of this Agreement, the following terms shall have the meanings
ascribed to them in this Article.
1.1.1 "AGREEMENT" shall mean this Share Purchase Agreement.
1.1.2 "SELLER" and "BUYERS" shall bear the respective meaning assigned to the
expression at the beginning of this Agreement and in each case shall
include the successors in title and permitted assigns of the
party/person in question.
1.1.3 "PARTY" and collectively as the "PARTIES" shall mean the Buyer and the
Seller, as the context may require.
1.1.4 "EFFECTIVE DATE" shall mean the date of entering into force of this
Agreement. The Agreement shall enter into force after its signing by
the Parties.
1.1.5 "SHARES" shall mean the paid-up equity shares of RTS being transferred
from the Seller to the Buyer pursuant to the terms of this Agreement.
1.1.6 "ENCUMBRANCE" means any mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of preemption, third party
right or interest, encumbrance or security interest of any kind, or
other type of preferential arrangement, (including without limitation a
title transfer or retention arrangement) having similar effect.
1.1.7 "PURCHASE PRICE" shall mean the total amount to be paid for the Shares
which is specified in Article 3.1 of this Agreement.
1.1.8 "FORCE MAJEURE" shall mean each event that the parties hereunder could
not foresee and prevent and which makes the fulfillment of the
obligations hereunder impossible. Such events might be wars,
international embargo, civil riots, events of nature, flee, terrorist
acts, strikes etc.
1.2. INTERPRETATIONS
In this Agreement, unless the context otherwise requires:
a. words importing the singular include the plural and vice versa;
b. words importing a gender include every gender;
c. references to any document (including this Agreement) are
references to that document as amended, consolidated,
supplemented, novated or replaced from time to time;
d. references to this Agreement are references to this Agreement and
any annexures;
e. references to paragraphs, clauses, recitals and annexures are
references to paragraphs and clauses of and recitals and
annexures to this Agreement;
f. headings are for convenience only and must be ignored in
construing this Agreement;
g. references to Parties or to any Party include references to their
or its respective successors, permitted assigns, executors and
administrators;
h. references to any law are references to that law as amended,
consolidated, supplemented or replaced from time to time ;
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i. words and expressions not expressly defined in this Agreement
shall, as far as permissible, bear the same meaning as
understood, in the Companies' Act, 1956, or any statutory
modification thereof in force at the time of entering into this
Agreement;
j. references to any person include references to any individual,
body corporate, association, partnership and governmental agency;
k. if a period to time is specified and dates from, after or
before a given day or the day of an act or event, it is to be
calculated exclusive of that day;
l. if a payment or other act must (but for this Clause) be made or
done on a day which is not a Business Day, then it must be dons
on the next following Business Day;
ARTICLE 2 - SUBJECT OF THE AGREEMENT
The subject of this Agreement snail be the transfer through sale of fully paid
up 22,26,007 (Twenty Two Lacs Twenty Six Thousand and Seven Only) voting shares
of Rs 10/- each, comprising equity capital equal to 99.99% of RTS as of the date
of signing the Agreement, together with all ensuing rights and obligations, free
of any Encumbrance, according to the current legislation as setout in Schedule
1.
ARTICLE 3 - PURCHASE PRICE AND TERMS OF PAYMENT
The purchase price xxxx be Rs. 22,260/- (Rupees Twenty Two Thousand and Two
Hundred and Sixty Only) payable in cash.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents to the Buyer, as of the Effective Date of this Agreement,
as follows:
4.1. AUTHORITY OF SELLER
Seller has full authority to enter into this Agreement and to carry out the
transaction Contemplated hereby. Seller is a duly organized, validly existing
company under the Companies' Act, 1956 and has full corporate power and
authority to enter into this Agreement and to carry out the transaction
contemplated hereby. Seller has taken all action required to be taken by them
for the execution and delivery of this Agreement and the consummation of the
transaction contemplated hereby, and no other proceedings on the part of Seller
will be necessary to consummate the transaction contemplated hereby. This
Agreement is a legal, valid and binding agreement of Seller, enforceable in
accordance with its terms.
4.2. ORGANIZATION AND CAPITALIZATION OF SELLER
The Seller is duly organized, validly existing and in good standing under the
Companies' Act of 1956, registered according to proper procedures by the proper
authorities.
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4.3. ADDITIONAL CONSENT AND APPROVALS
a. No consent, approval or authorization of, or declaration, filing
or registration with, any governmental or regulatory
authority except those required in the normal course of such
a transaction by or on behalf of the Seller and RTS
is required in connection with the execution,
delivery and performance of this Agreement or the
consummation of the transaction contemplated hereby.
b. The execution, delivery and performance by the
Seller of. this Agreement and the Consummation of
the transaction contemplated hereby:
i. will not violate any provision of any law,
regulation, order or judgment applicable to Seller
or RTS;
ii. will not require any consent of, or any filing with or
notification to, any governmental or regulatory authority
under any provision of applicable law or regulation
except except for those required in the normal course of
such a transaction:
iii. will not violate or constitute a breach of any
provision of the organizational documents of the
Seller or RTS; and
iv. will not require any consent under and will not
result in the breach of any agreement to which
Seller or RTS is a party or by which Seller or RTS
or any of their respective material assets, are
bound, except for such consents and waivers which
have been obtained.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to Seller as follows:
5.1. LEGAL STATUS
The Buyer is a corporation duly organized, validly existing under the Companies'
Act, 1956.
5.2. AUTHORIZATION
The Buyer has full Corporate power and authority to enter into this Agreement
and to carry out the transaction contemplated hereby. The Board of Buyer has
taken all action required to be taken by it to authorize the execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby, and no other corporate proceedings on the part of Buyer will be
necessary to consummate the transaction contemplated hereby. This Agreement is a
legal, valid arid binding agreement of Buyer, enforceable in accordance with its
terms.
5.3. CONSENTS AND APPROVALS
No consent, approval or authorization of, or declaration, filing or registration
with, any governmental or regulatory authority by or on behalf of Buyer, is
required in connection with the execution, delivery and performance of this
Agreement or the consummation of the transaction contemplated hereby.
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5.4. DILIGENCE REVIEW
The Buyer acknowledges that it has been provided a full opportunity to conduct a
diligence review of the business and operations of RTS. The Buyer represents to
the Seller that it has had ample opportunity to fully evaluate the business and
operations, and that it is fully familiar with all aspects of RTS, including its
assets, its liabilities and those contracts to which it is a party. The Buyer
acknowledges, with the exception of the Seller representations and warranties
expressly contained in Article 4 of this Agreement, that the Buyer shall execute
this Agreement and agrees to purchase the Shares based solely on its due
diligence review.
ARTICLE 6 - COVENANTS OF THE SELLER
6.1. AGREEMENT
The Seller will undertake, and will cause RTS to undertake, all activities
necessary or required, if any, in order to consummate the purchase transaction
contemplated by this Agreement. The Seller will also cooperate with the Buyer
with respect to any activities that the Buyer may be required to make in order
to consummate the purchase transaction.
6.2. ACCESS TO INFORMATION
From the date of this Agreement the Seller shall cause RTS to give to Buyer and
its officers, employees, counsel, accountants and other representatives access
to and the right to inspect, during normal business hours, all of the assets,
records, contracts and other documents relating to RTS as the other party may
reasonably request. Buyer shall not use such information for purposes other than
in connection with the transactions contemplated by this Agreement and shall
otherwise hold such information in confidence until such time as such
information otherwise becomes publicly available and will sign such standard and
customary non-disclosure agreements as are reasonably requested by RTS.
6.3. NOTIFICATION
After the date of this Agreement the Seller will promptly notify the Buyer in
writing if the Seller becomes aware of any fact or condition that causes or
constitutes a breach of any representation or warranty made by the Seller under
this Agreement.
ARTICLE 7 - COVENANTS OF THE BUYER
INVESTMENT GUARANTEE
The Buyer is under no guarantee to make future investments in RTS but shall make
investments in RTS as and when required on terms and conditions acceptable to
it.
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ARTICLE 8 - CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
All Obligations of Seller to consummate this transaction is subject to the
satisfaction (or waiver) prior hereto of each of the following conditions:
8.1. REPRESENTATIONS AND WARRANTIES
The representations and warranties of Buyer contained in this Agreement shall be
true and correct on the date hereof (except to the :extent such representations
and warranties speak as of en earlier date).
8.2. LEGALITY
No new enacted law or court order that come into force after signing of this
Agreement shall have effect on provisions of this Agreement.
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
All obligations of Buyer to consummate the transaction is subject to the
satisfaction (or waiver) prior hereto of each of the following conditions:
9.1. REPRESENTATIONS AND WARRANTIES
The representations and warranties of Seller contained in this Agreement shall
be true end correct on the date hereof (except to the extent such
representations and warranties speak as of an earlier date).
9.2. LEGALITY
No new enacted law or court order that come into force after signing of this
Agreement shall have effect on provisions of this Agreement.
ARTICLE 10 - FORCE MAJEURE
The contracting Parties shall not be held responsible in case of non-performance
of obligations and shall not owe compensation for damages and losses when the
non-performance is a result of Force Majeure. The Party suffering Force Majeure
shall be obligated to undertake all necessary measures in good faith to mitigate
sustained damages and losses and to inform the other Party preferably in writing
within 14 (fourteen) days of the Force Majeure occurrence. The Party suffering
Force Majeure shall be obliged to certify the occurrence of Force Majeure as
defined in this Agreement. If a Party is already in delay for an obligation
under the Agreement, it cannot claim Force Majeure. During the Force Majeure,
the performance of the obligation under the Agreement by the both Parties shall
be suspended.
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ARTICLE 11 - RESOLUTION OF DISPUTES
11.1. DUTY TO NEGOTIATE
Both Parties acknowledge and agree that any dispute or disagreement arising
under this Agreement shall be resolved, if possible, through discussions and
negotiations between themselves. All such negotiations shall be undertaken in
good faith.
11.2. ARBITRATION
Any dispute or disagreement hereunder, including but not necessarily limited to
any relating to or concerning the interpretation of the Agreement, its validity
or invalidity, its termination, or whether a party has performed and fulfilled
its obligations hereunder, that cannot be resolved through the good faith
negotiations of the Parties shall be referred to and settled in accordance with
the provisions of The Indian Arbitration and Conciliation Act of 1996. English
shall be the language used during the arbitration trial process. Every
arbitration ruling shall be accepted by the Parties as final and the dispute
shall not be taken to court. Arbitration shall be by sole Arbiter to be
appointed by the Parties jointly.
ARTICLE 12 - GENERAL MATTERS
12.1. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
India and subject to jurisdiction of competent court/s in New Delhi only.
12.2. ENTIRE AGREEMENT
This Agreement including the Appendices thereto embodies the entire agreement of
the parties in relation to the subject matter herein and supersedes all prior
understandings or agreements, oral or written, between the parties hereto.
12.3. HEADINGS
The headings and subheadings of the Articles contained in this Agreement, except
the terms identified for definition in Article I of this Agreement, are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
12.4. MODIFICATION; NO ASSIGNMENT
No amendment or other modification, rescission, release, annulment or
assignment-of any part of this Agreement shall be effective except pursuant to a
written agreement signed by the duly authorized representatives of the Parties
hereto.
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12.5. COUNTERPARTS
This Agreement may be executed in four counterparts, each of which shall be
binding as of the date first written above, and all of which shall constitute
one and the same instrument. Each such verified copy shall be deemed an
original.
12.6. NOTICE
Any notice, request, demand, consent, approval or other communication to a Party
hereto shall be effective when received and shall be given in writing, and
delivered in person against receipt therefore, or sent by certified mail,
postage prepaid, or courier service at its address set forth below or at such
other address as it shall hereafter furnish in writing to the other Person. All
such notices and other communications shall be deemed given on the date received
by the addressee.
If to the Buyer:
Xx. Xxxxxx X. Xxxx
4th Floor, Shri Vishwashwar Bhawan,
Sanyas Ashram Road,
Vile Road (West) Mumabi-56.
if to the Seller:
Xx. X.X. Xxxxx
X-00, Xxxxx Xxxxxxxxxx Xxxx,
Xxxxx - X, Xxx Xxxxx 110 020.
12.7. WAIVER
The Seller and the Buyer may waive their respective rights, powers or privileges
under this Agreement; provided, that such waiver shall be in writing; and
further provided, that no failure or delay on the part of the Seller or the
Buyer to exercise any right, power or privilege under this Agreement will
operate as a waiver thereof, nor will any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right power or privilege by the
Seller, or the Buyer under the terms of this Agreement, nor will any such waiver
operate or be construed as a future waiver of such right, power or privilege
under this Agreement.
12.8. UNENFORCEABLE
If any provision of this Agreement is invalid or unenforceable then, to the
extent possible, all of the remaining provisions of this Agreement shall remain
in full force and effect and shall be binding upon the Parties hereto.
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IN WITNESS WHEREOF the parties hereto have set and subscribed their respective
hands on the day and the year first hereinbefore written.
SIGNED AND DELIVERED SIGNED AND DELIVERED
BY THE WITHINNAMED BY THE WITHINNAMED
For Real Time Holdings Pvt. Ltd. For Distinctive Devices (India) Pvt. Ltd.
(the Seller) (the Buyer)
--------------------------------- -----------------------------------------
X.X. Xxxxx Xxxxxx X. Xxxx
(Director) (Director)
---------------------------------
Xxxxxx Xxxxxx
(Director)
IN THE PRESENCE OF
WITNESS
NAME AND ADDRESS
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SCHEDULE #1
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DETAILS OF EQUITY SHARES OF REAL TIME SYSTEMS LTD.
Certificate No. Distinctive Nos. Total No. of Shares
--------------- ---------------- -------------------
to 22,26,007
Twenty Two lacs Twenty Six Thousand and Seven Equity shares of Rs 10/- each
fully paid-up.
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