Exhibit 10.66
SHAREHOLDERS AGREEMENT
DATED APRIL 23 1998
BETWEEN
MAX TELECOM VENTURES LIMITED
AND
XXXXXXXXX TELECOMMUNICATIONS (INDIA) LIMITED
AND
TELECOM INVESTMENTS INDIA PRIVATE LIMITED
AND
XXXXXXXXX XXX TELECOM LIMITED
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................... 2
1. DEFINITIONS ......................................................... 6
2. SHAREHOLDING ........................................................ 8
3. REGISTERED OFFICE ................................................... 8
4. CONDITION OF EFFECTIVENESS .......................................... 9
5. DIRECTORS AND OFFICERS .............................................. 9
5.1 Directors of the Company ..................................... 9
5.2 Nominated Directors to be Elected ............................ 9
5.3 Alternate Director ........................................... 9
5.4 Directors' Fees .............................................. 10
5.5 Place and Calling of Board Meetings .......................... 10
5.6 Resolution by Circulation .................................... 10
5.7 Co-Chairmen .................................................. 10
5.8 Managing Director ............................................ 11
5.9 Performance of Managing Director ............................. 11
5.10 Quorum for Directors Meetings ................................ 11
5.11 Attendance by Consultants Advisers and Non-voting Attendees .. 11
5.12 Decisions by Majority Vote ................................... 12
5.13 Secretary .................................................... 12
5.14 Auditors ..................................................... 12
5.15 Accounting Year .............................................. 12
6. BUSINESS OF THE COMPANY ............................................. 12
7. BUSINESS PLAN & BUDGET .............................................. 12
7.1 Business Plan & Budget ....................................... 12
7.2 Budget Details ............................................... 13
8. FUNDING AND CAPITAL ................................................. 13
9. MANAGEMENT .......................................................... 13
9.1 Business to be Managed by Board .............................. 13
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9.2 Majority Votes Required for certain Board Meeting ........... 13
10. FURTHER OBLIGATIONS OF THE PARTIES .................................. 15
10.1 Further Assurance ............................................ 15
10.2 Directors to Vote to Implement this Agreement ................ 15
10.3 Accounting and Reporting ..................................... 15
10.4 Exchange of Information ...................................... 16
10.5 Fair Dealings ................................................ 16
11. TRANSFER OF SHARES .................................................. 16
11.1 Restrictions on Transfer of Ownership ........................ 16
11.2 No Mortgage or Pledge of Shares .............................. 16
ll.3 Permitted Transfers .......................................... 16
11.4 Default ...................................................... 17
11.5 Sale of Shares on Default .................................... 17
11.6 Repayment of Shareholder Loans and Guarantees ................ 19
11.7 Title and Completion of Share Transfer ....................... 19
11.8 Rights of First Refusal ...................................... 19
11.9 Tag Along .................................................... 23
11.10 Sectoral Caps ................................................ 24
11.11 Deed of Adherence ............................................ 25
12. MAINTENANCE OF LICENCES, GOVERNMENT APPROVALS ....................... 25
13. TERM, TERMINATION AND DISPUTES ...................................... 25
13.1 Term ......................................................... 25
13.2 Rights of Parties on Winding Up .............................. 26
13.3 Agreement Terminates on Winding Up ........................... 26
13.4 Arbitration and Consultation ................................. 26
14. NON-COMPETITION ..................................................... 27
14.1 Restricted Business .......................................... 27
14.2 Restriction on Employees ..................................... 28
15. CONFIDENTIALITY AND PROTECTION OF NAME .............................. 28
15.1 Agreement Confidential ....................................... 28
15.2 Xxxxxxxxx not to use "Max" ................................... 29
15.3 MTV not to use "Xxxxxxxxx" ................................... 29
15.4 TIP not to use "Max" or "Xxxxxxxxx" .......................... 29
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15.5 Existing Names ............................................... 29
15.6 Injunctive Relief ............................................ 29
15.7 Survival ..................................................... 29
16. AGREEMENT ........................................................... 30
17. NOTICES ............................................................. 30
18. MISCELLANEOUS ....................................................... 32
18.1 Legal and other costs ........................................ 32
18.2 Complete Agreement ........................................... 32
18.3 Unenforceable Provisions ..................................... 32
18.4 No Partnership ............................................... 32
18.5 Amendment in Writing ......................................... 33
18.6 No assignment ................................................ 33
18.7 No Waiver .................................................... 33
18.8 Counterparts ................................................. 33
18.9 Governing Law ................................................ 33
SCHEDULE ONE - FAIR VALUE ................................................. 35
SCHEDULE TWO - NET ASSET VALUE ............................................ 36
EXHIBIT A - ARTICLES ...................................................... 37
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SHAREHOLDERS AGREEMENT
XXXXXXXXX XXX TELECOM LIMITED
THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made the 23rd day of April,
1998:
BETWEEN AND AMONG
1. MAX TELECOM VENTURES LIMITED, a company incorporated in India whose
registered office is at Bhai Xxxxx Xxxxx Nagar, Railmajra, Tehsil
Xxxxxxxxx, Xxxxxxxx Xxxxxxxxxx, Xxxxxx 000000, Xxxxx ("MTV") and a
Subsidiary of Max India Limited;
2. XXXXXXXXX TELECOMMUNICATIONS (INDIA) LIMITED, a company incorporated in
Mauritius whose registered office is at 0xx xxxxx, Xxx Xxxxxxxx, Xxxxx
Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx of Mauritius ("HTI");
3. TELECOM INVESTMENTS INDIA PRIVATE LIMITED, a company incorporated in India
whose registered office is at Bakhtawar 0xx Xxxxx, 000 Xxxxxxx Xxxxx,
Xxxxxx 000000, Xxxxx ("TIP");
4. XXXXXXXXX XXX TELECOM LIMITED, a deemed public company incorporated in
India whose registered office is at Bhai Xxxxx Xxxxx Nagar, Railmajra,
Tehsil Xxxxxxxxx, Xxxxxxxx Xxxxxxxxxx, Xxxxxx 000000, Xxxxx ("the
Company").
WHEREAS:
A. The Company is a joint venture company whose current principal shareholders
are MTV and HTI, and the Company has Licences to operate a mobile cellular
telephone network in Mumbai and paging networks in seven cities and in the
State of Punjab.
B. As a result of transactions between MTV, Liquid Investment & Trading
Company and TIP of even date, TIP has purchased 41,000,000 fully paid
equity shares of the Company constituting 41% of the total paid-up capital
of the Company.
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C. This Agreement sets out the arrangement between the parties for the
management on an ongoing basis of the Company.
NOW THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED AND
OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH IS
ACKNOWLEDGED IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 In this Agreement unless the context otherwise requires or expressly
provides, the following words shall have the following meanings
respectively:
"Act" means the Companies Act, 1956 and/or any statutory modifications
amendments or re-enactments thereto from time to time;
"Affiliate" means the parent or holding company of any Party or any company
in which such parent or holding company has a direct or indirect holding of
more than 40% of the equity share capital;
"Approvals" means approvals detailed in Clause 3.01(b) of the Share
Purchase Agreement hereto;
"Articles" means the articles of association of the Company for the time
being;
"Board" means the board of directors of the Company;
"Business Day" means a day on which scheduled banks are open for business
in Mumbai and New Delhi;
"Completion" shall have the same meaning as set forth in Clause 4;
"Directors" means the directors of the Company from time to time;
"Effective Date" means the date on which the Parties acknowledge (in agreed
form) that the actions stated in Clause 4 hereof have been complied with;
"Fair Value" has the meaning set out in Schedules 1;
"HTI Directors" means those Directors nominated by HTI in accordance with
Clause 5.1;
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"HTI" means Xxxxxxxxx Telecommunications (India) Limited, a Mauritius
incorporated limited company, which includes any company to which any or
all of the HTI Shares may have been transferred in accordance with this
Agreement;
"HTI Shares" means the Shares owned by HTI and/or Subsidiaries and/or
Affiliates of the group of which it forms part;
"MTV Director" means any Director nominated by MTV in accordance with
Clause 5.1;
"MTV Shares" means the Shares owned by MTV and/or Subsidiaries and/or
Affiliates of the group of which it forms part;
"MTV" means Max Telecom Ventures Limited, an Indian incorporated limited
company, which includes any company to which any or all of the MTV Shares
may have been transferred in accordance with this Agreement;
"Memorandum" means the memorandum of association of the Company for the
time being;
"Net Asset Value" means in relation to the Shares to be transferred, the
value per Share calculated in accordance with Schedule 2 and multiplied by
the number of Shares to be transferred;
"TIP" means Telecom Investments India Private Limited, a company
incorporated under the Act, which includes any company to which any or
all of the TIP Shares have been transferred in accordance with this
Agreement;
"TIP Directors" means those Directors nominated by TIP in accordance with
Clause 5.1;
"TIP Shares" means the Shares owned by TIP and/or Subsidiaries and/or
Affiliates of TIP;
"Party" and "Parties" means the signatories to this Agreement and any other
person who agrees to be bound by the terms of this Agreement;
"ROC" means Registrar of Companies, Punjab;
"Rs." or "Rupees" means the lawful currency of India;
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"Share Purchase Agreement" means an agreement dated 17th March, 1998 in
relation to the transaction described in Recital B hereof;
"Shareholder" means a Party and any of its Subsidiaries which is a holder
of any class of Shares;
"Shares" means all classes of shares in the capital of the Company or any
class thereof, as the case may be and includes any and all of the rights
conferred on a person by the ownership of such shares; and
"Subsidiary" means in relation to any person, any body registered or other
entity directly or indirectly controlled by such person, for which purpose
"control" means ownership of more than 50% of voting share capital (or
equivalent right of ownership) of such body registered or other entity and
power to direct its policies and management whether by contract or
otherwise including any subsidiaries of any parent or holding company of
any Shareholder.
1.2 References to the plural shall include the singular and vice versa;
reference to one gender shall include other genders, references to company
shall include foreign companies, corporations and bodies registered,
references to persons shall include bodies registered and unincorporated;
references to Clauses and Schedules are to the clauses and schedules of
this Agreement; and the headings to this Agreement are for convenience of
reference only and shall not alter or affect the meaning or interpretation
of this Agreement.
1.3 This Agreement shall be binding on the Parties when duly executed by them
but shall not be implemented and acted on until the Effective Date.
2. SHAREHOLDING
Subject as hereinafter provided, the issued share capital in the Company at
the Effective Date shall be held in the following percentages:
HTI 49%
MTV 10%
TIP 41%
3. REGISTERED OFFICE
The registered office of the Company shall be situated at such place in
Punjab or otherwise as may be agreed between the Parties from time to time.
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4. CONDITION OF EFFECTIVENESS.
This Agreement shall take effect on the completion of the Share Purchase
Agreement ("Completion"). Upon Completion, the Parties shall ensure that
Articles, in the form and manner attached hereto as Exhibit "A" are adopted
at a General Meeting, and the resolution adopting the same shall be filed
with the ROC.
5. DIRECTORS AND OFFICERS
5.1 Directors of the Company
(a) Subject to the provisions of the Act, the Board shall comprise
initially of not less than six Directors. Three Directors shall be
nominated by HTI, one Director shall be nominated by MTV and two
Directors shall be nominated by TIP. The Shareholder nominating a
Director may by notice in writing to the Company require the removal
of such Director and nominate another person as a Director to act in
his place.
(b) Any Shareholder holding less than 10% of the issued equity share
capital of the Company shall not or shall cease (as the case may be)
to have any right of nomination under this Clause 5.1.
(c) Two Directors shall be non-retiring Directors, one of whom shall be
nominated by HTI and the other shall be the Managing Director.
5.2 Nominated Directors to be Elected
Subject to the provisions of the Act, each of the Parties undertakes to
procure that the persons nominated in accordance with Clause 5.1 shall be
elected or re-elected as Directors or appointed to the Board as the case
may be. Furthermore, upon receipt of a written request from MTV, TIP or HTI
(as the case may be) to remove or not to re-elect any Director nominated by
them, the Parties shall procure the removal or shall fail to re-elect such
Director as so requested.
5.3 Alternate Director
Subject to the provisions of the Act, the Shareholders shall be entitled to
procure or cause the Board to appoint alternate directors ("Alternate
Directors"). The persons to be appointed as Alternate Directors shall be
selected by the respective Shareholders for whose representation the
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original Director was nominated. An Alternate Director shall hold office as
such in accordance with the Act and shall exercise the same powers and
discretion and shall owe to the Company and the Shareholders the same
obligations and duties as the Director to whom he is the alternate.
5.4 Directors' Fees
Subject to the provisions of the Act, the Directors shall not be paid any
fees for acting in their capacity as Directors. All Directors may subject
to applicable restrictions if any under law, be remunerated separately for
the performance of special or executive duties approved from time to time
by the Board. All Directors will be entitled to be paid or reimbursed their
reasonable travelling, accommodation and subsistence expenses incurred in
attending meetings (Board/general/any other committee meeting) and/or in
the discharge of their duties as Directors.
5.5 Place and Calling of Board Meetings
Board meetings shall be held at such places, in or outside of India as the
Board may determine and failing any such determination at the Company's
principal office in Mumbai. Board meetings shall, unless otherwise agreed
by the Board, be held at least once every three months and at least four
times in each year. Any Director may call a meeting of the Board. Unless
the requirement of notice is waived by all Directors, fourteen days'
written notice (or such shorter period as all the Directors may agree) of
Board meetings shall be given to all the Directors and their Alternate
Directors. Subject to Clause 5.10, where a Board Meeting is adjourned, it
shall be reconvened on a day seven Business Days from the original date at
the same place and time unless the Board decides otherwise. Notices and
minutes of Board meetings shall be given to each Director at their last
known address, whether resident in India or abroad.
5.6 Resolution by Circulation
Subject to the provisions of the Act, resolutions of the Board may be
passed by circulation, if the resolution has been circulated in draft,
together with necessary papers, if any, to all the Directors, then in India
or outside India, and has been approved by such of the Directors as are
then in India, or by the requisite majority under Clause 9 or such of them,
as are entitled to vote on the resolution.
5.7 Co-Chairmen
The Co-Chairmen of the Board shall be nominated respectively by MTV and
HTI, in each case to be one of the Directors of the Company as nominated
by MTV or HTI. The Co-Chairmen of the Board shall preside
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in rotation as chairman of each meeting of the Board at which he is
present. In the absence of the co-chairmen, the Directors attending the
Board meeting shall elect a Director from amongst themselves to chair the
meeting. In the event of any equality of votes, the chairman of the meeting
shall not have a second or casting vote. MTV shall not have the right to
nominate a Co-Chairman if it shall cease to have the right to nominate a
Director pursuant to Clause 5.1(b).
5.8 Managing Director
In addition to the Directors appointed under Clause 5.1, the Board shall
appoint a Managing Director of the Company, provided that:
(a) any candidate for the post shall be nominated by HTI having due regard
to the requisite technical qualifications;
(b) any appointment thereof shall be subject to Board approval under
Clause 9.2(f); and
(c) the Managing Director shall be a non-retiring Director.
5.9 Performance of Managing Director
The Managing Director shall be responsible for the day to day operations of
the Company subject to the overall control of the Board. The Parties
recognise that the Managing Director will manage the business and affairs
of the Company and that his performance shall be the subject matter of a
consultative process and joint review of the Board.
5.10 Quorum for Directors Meetings
The quorum for meetings of the Board shall be four (4) Directors, excluding
interested Directors. If a quorum is not present, the meeting shall be
adjourned for seven Business Days at the same place and time and if no
quorum is then present the Directors present shall form a quorum.
5.11 Attendance by Consultants Advisers and Non-voting Attendees
(a) If the Board so authorises or requests, auditors, consultants and
advisers of the Company (in addition to those who also act for any one
or more of the Directors in a personal capacity) and employees of the
Company shall be permitted to attend and speak at meetings of the
Board, but not to vote.
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(b) The Parties agree that HTI shall have the rights to bring to all Board
meeting a nominee of HTI's shareholders who shall be permitted to
attend and speak at meetings of the Board but not to vote.
5.12 Decisions by Majority Vote
Subject to the provisions of Clause 9.2 below, all decisions of the Board
shall be determined by a simple majority of votes.
5.13 Secretary
The secretary of the Company shall be such person as shall from time to
time be determined by the Board.
5.14 Auditors
The auditors of the Company shall be Price Waterhouse or such international
and reputable firm of accountants as shall from time to time be recommended
by the Board.
5.15 Accounting Year
The accounting year of the Company shall end on 31st March each year or
such other date as the Parties shall agree and the Company in general
meeting shall resolve.
6. BUSINESS OF THE COMPANY
The business of the Company shall be conducted in India and shall comprise
the following:
(a) the provision of cellular telephone services and the sale of cellular
telephone units and equipment; and
(b) the provision of paging services and the sale of pagers and
accessories.
The Company shall not engage in any other business.
7. BUSINESS PLAN & BUDGET
7.1 Business Plan & Budget
The Company shall prepare at least two months prior to the close of each
accounting year and the Board shall review, amend and, if thought
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appropriate, approve prior to the close of such accounting year a business
plan and a budget comprised of a balance sheet, profit and loss statement,
cash flow statement, capital expenditure statement and funding requirements
schedule covering the five year period commencing at the close of such
accounting year. If Board approval for the budget cannot be obtained then
the prior year's budget shall be deemed to be the approved budget for the
current year.
7.2 Budget Details
The budget shall be in sufficient detail to provide the Directors with
information sufficient to facilitate their approval.
8. FUNDING AND CAPITAL
The funds required by the Company shall be provided first, by the Company's
cash flow, secondly, by external borrowings, thirdly, by shareholders loans
and lastly, by the issue of additional share capital. The additional share
capital shall either be equity or preference. The debt-equity ratio shall
be determined by the Board from time to time. If further funding is
required, the Parties shall provide such further funding pro-rata on the
basis of their respective shareholding in the Company.
9. MANAGEMENT
9.1 Business to be Managed by the Board
The Board shall be responsible for the management of the business of the
Company and determining the overall policies and objectives of the Company.
The Board shall delegate responsibility for managing the day to day
operations of the Company to the Managing Director on such terms as the
Board deems desirable.
9.2 Majority Votes Required for certain Board Meetings
Notwithstanding any other provision in this Agreement, the Parties agree
that the following matters shall not be implemented in respect of the
Company without the passing of a resolution of the Directors present and
voting, on the issue at a Board Meeting of the Company, which resolution is
approved by at least 4 of the Directors of the Company, excluding
interested Directors who are prohibited at law to vote thereon:
(a) issue or agree to issue or grant or agree to grant any option over or
right to acquire any Shares or any other security or purchase or
redeem any Shares or any other security or issue or agree to issue any
debenture, loan stock or convertible security;
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(b) pass any resolution, the result of which would be the cessation or
surrender or giving up of the Company's business or any part thereof,
its winding up or receivership, or make any composition or arrangement
with creditors whether generally or specifically;
(c) establish, acquire or engage in any business, venture or real estate
or any interest therein, other than those provided in this Agreement
or dispose of the same, including without limitation taking up shares
in any company or consolidating or merging with any company or
business;
(d) apply for or make any proposal or submission regarding any licence or
other like authorisation, for the provision of, paging or cellular
telephone services outside the geographic areas where they are
presently provided by the Company or for providing any other
telecommunications services or make any amendment or addition thereto
or accept any licence or like authorisation;
(e) approve any business plan or budget under Clause 7 or any amendments
to such business plan or budget;
(f) appoint and remove, the Managing Director, or the general manager or
the executives in charge of finance or of matters relating to
technical and marketing in respect of each business or all businesses
of the Company;
(g) increase or appoint additional Directors other than Alternate
Directors;
(h) effect any change to the name of the Company, or any current trading
name of the business of the Company;
(i) execute any contracts or agreements between the Company and any Party
and/or any Subsidiary of any Party;
(j) borrow any money exceeding by more than ten percent (10%) in any
financial year of any amount stated in the last approved business plan
of the Company or last approved budget whichever is the higher;
(k) make any capital expenditure by more than ten percent (10%) in any
financial year in excess of the last approved business plan or budget
of the Company;
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(l) effect the registration of any transfer of any Shares held by any
Shareholder (other than a transfer made pursuant to the terms of this
Agreement);
(m) remove or replace the Company's principal banker(s);
(n) remove or replace the Company's auditors; and
(o) recommendation of distribution of dividends.
10. FURTHER OBLIGATIONS OF THE PARTIES
10.1 Further Assurance
The Parties shall do and execute or procure to be done and execute all such
further acts, deeds, things and documents as may be necessary to give full
effect to the terms of this Agreement.
10.2 Directors to Vote to Implement this Agreement
Each Shareholder shall procure that any Director nominated by it, shall
exercise or refrain from exercising any voting rights so as to ensure the
passing of any resolution necessary to give full effect to the provisions
of this Agreement.
10.3 Accounting and Reporting
Each of the Shareholders shall, (to the extent it is within it's power to
do so) procure that the Company will and the Company shall:
(a) prepare business plans and budgets as set out in Clause 7.1;
(b) keep true and accurate books of accounts and records in accordance
with Indian and internationally accepted accounting practice and
procedure and in accordance with Indian law and procure that such
books and records are audited by the auditors annually as soon as
possible after the end of each financial year;
(c) upon reasonable written notice to the Company allow MTV, TIP and HTI
or their authorised representatives or professional advisers and the
Directors, the right during normal business hours to inspect the
books, accounting records and any documents or records of the Company,
to make extracts and copies therefrom at their own expense, and to
have full access to all its property and assets; and
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(d) supply to each Director, such regular management and financial
information in English as is customary and as they may from time to
time reasonably require including monthly financial, monthly operating
reports and status of various compliances.
10.4 Exchange of Information
Each of the Parties shall promptly notify each other and the Company, of
all or any matters coming to its notice which may affect the title to or
enjoyment of the Company's premises, licences, authorisations, assets or
property or the conduct of its business, and of all notifications, orders,
demand and other communication received from any government or other
authority in relation to the Company's business, licences, authorisations,
assets or property.
10.5 Fair Dealings
All dealings between the Company and any Party or any Subsidiary or
Affiliate of a Party shall be on a fair and equitable basis and at arm's
length.
11. TRANSFER OF SHARES
11.1 Restrictions on Transfer of Ownership
No rights conferred by the ownership of a Share may be transferred
separately from legal title to the Share itself and any Transfer of Shares
shall be subject to the provisions of this Agreement.
11.2 No Mortgage or Pledge of Shares
Each of the Shareholders, hereby undertakes with the others that during the
continuance of this Agreement it shall not:
(a) mortgage, charge, pledge or otherwise encumber the whole or any part
of its Shares; or
(b) assign or otherwise purport to deal with the beneficial interest
therein or any right in relation thereto separately from the legal
interest.
11.3 Permitted Transfers
Subject to Clause 11.11, any party may transfer its Shares to:
(a) a Subsidiary; or
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(b) an Affiliate; or
(c) any holding or parent company of the Party, or a Subsidiary thereof.
11.4 Default
A Party shall be in default for the purposes of Clause 11.5 if:
(a) it breaches Clause 11.1;
(b) it breaches Clause 11.2;
(c) it commits a material breach of any provision of this Agreement and
fails to remedy such breach within 30 days of being required in
writing to do so by any other Party provided that the mere acquisition
holding of, or owning the beneficial interest in Shares or securities
of the Company prohibited or restricted under any legislation,
regulation, policy or ruling shall not constitute a material breach
under this Agreement;
(d) it becomes bankrupt or insolvent or stops payment to or makes an
arrangement with its creditors generally, or any resolution is passed
for its winding up or bankruptcy (other than a winding up for the
purpose of reconstruction or amalgamation) or any petition or
proceedings to winding up that Party has been admitted by a competent
court of law or it ceases to exist or there is an attachment of or the
levy of execution on a substantial part of the assets or business of
that Party which is not remedied within 120 days, or an encumbrancer
takes possession of or a receiver, trustee, administrator or similar
officer is appointed over all or a substantial part of its assets or
business; or
(e) it breaches Clause 14 and/or 15.
11.5 Sale of Shares on Default
If any Party is in default within the meaning of Clause 11.4 ("the
Defaulting Party") the other Parties or any of them ("the Non-Defaulting
Parties") may within 30 days of becoming aware of such default give the
Defaulting Party or any Subsidiary of the Defaulting Party and/or other
parties owning Shares pursuant to Clause 11.3, written notice of the
default ("Disposal Notice") requiring the Defaulting Party or its
Subsidiary and/or other parties holding the Shares pursuant to Clause 11.3
to transfer all of its Shares ("the Disposal Shares") to the Non Defaulting
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Party or its designee at their Net Asset Value, and the Disposal Shares
shall then be promptly transferred. In the event of more than one Disposal
Notices, being served any transfer of Shares thereby resulting shall be
pro-rata the existing shareholders of the Non-Defaulting Parties in
question. In order to facilitate such sale and transfer the following shall
apply:
(a) 30 days after the receipt by the Defaulting Party of the Disposal
Notice, the Directors in the Company appointed by the Non Defaulting
Parties or its Subsidiaries ("the Non Defaulting Directors") shall be
constituted the agent of the registered owner of the Disposal Shares,
for the sale of the Disposal Shares to the Non Defaulting Party or
Parties or its designees.
(b) Within seven days after the expiry of the 30 day period referred to in
Clause 11.5 (a), the Non Defaulting Directors shall execute in the
name and on behalf of the registered owners thereof, and deliver to
the Non Defaulting Parties, a transfer of the Disposal Shares to the
Non Defaulting Parties or its designee in exchange for cashiers or
bank cheques in Rupees in favour of the registered owners of the
Disposal Shares at their Net Asset Value. The Non Defaulting Directors
shall hold the cheques to the order of the registered owners of the
Disposal Shares once such Shares have been registered in the name of
the Non Defaulting Party or its designee.
(c) Notwithstanding the provisions of Clauses 5.8 and 9.2, the Directors
of the Company nominated by the Non-Defaulting Parties shall
constitute a quorum for passing a resolution to register the transfer
of the Disposal Shares to the transferee.
(d) In the event that Government and regulatory approvals are needed for
the transfer of the Disposal Shares to the Non Defaulting Party, the
time for transfer and payment for such Shares shall be extended while
such approval is being actively sought by the Non Defaulting Party or
its designee.
(e) In the event that the Non Defaulting Party is unable to take up any of
the Disposal Shares due to Indian Law or foreign investment
regulations, such Non Defaulting Party shall be entitled to nominate
any third party acceptable under Indian law to acquire such Disposal
Shares.
(f) The Defaulting Party agrees not to take any actions to prevent or
delay the transfer and registration of the Disposal Shares.
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The rights of the Non Defaulting Parties under this Clause ll.5 shall be in
addition to and without prejudice to their rights to claim damages and
other remedies against the Defaulting Party.
11.6 Repayment of Shareholder Loans and Guarantees
In the event of any transfer of Shares consequent on a default and unless
otherwise agreed:
(a) any shareholder loans advanced by the Defaulting Party or any of its
Subsidiaries or Affiliates shall, notwithstanding the terms of such
loan, be repaid:
(i) by the Company at the later of the original repayment date or the
first anniversary of the date of such transfer; or
(ii) by an assignment of all or part of such loan(s) to the
Non-Defaulting Party at the face value (including accumulated
interest) of such loan(s) to the Non-Defaulting Party, as may be
agreed between the Non-Defaulting Party and the Company. Any
interest agreed to be paid by the Company in respect of such
loan(s) shall continue to accrue until payment shall be made in
full but not otherwise.
(b) the Non Defaulting Parties shall use reasonable endeavours to procure
the release of any shareholder guarantee given by the Defaulting Party
or any of its Subsidiaries or Affiliates for the benefit of the
Company.
11.7 Title and Completion of Share Transfers
All transfers of Shares shall be effected by the transferor selling as
beneficial and legal owner free and clear of all liens, charges and
encumbrances and together with all rights attaching thereto, and upon
completion, the transferor shall deliver to the transferee, forms of
transfer in respect of the relevant Shares duly executed by the transferor
in favour of the transferee together with the relevant share certificates
and shall vote on the Board to register the transferee as the owner of the
Shares against payment by the transferee of the price due in respect
thereof. Subject to this Clause 11.7, the Parties shall thereupon do or
procure to be done all such acts and things as may be necessary to give
full effect to the transfer and the registration thereof.
11.8 Rights of First Refusal
11.8.1 MTV Shares
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(a) Should MTV wish to transfer any Shares (except for the transfer of
Shares permitted in Clause 11.3), it shall offer them to all the other
Parties (for the purposes of this Clause, the Company shall not be a
Party), by serving a transfer notice ("Transfer Notice") on them
stating the number of Shares ("Offer Shares") which it proposes to
sell and whether any shareholder loans or part thereof are to be sold
as condition of the sale of the Offer Shares together with:
(i) the price and other terms, if any, at which it is willing to sell
its Offer Shares and shareholder loans, such price not being
higher or the terms more onerous than those to any bona fide
third person offering to buy the Offer Shares or, in the case of
shareholders loans, outstanding amounts of such loans and the
accumulated interest thereon, if any;
(ii) full details of the terms of any bona fide offer it has received
to purchase the Offer Shares, if any; and
(iii) the identity of the person making the offer ("Prospective
Purchaser") and its ultimate parent company and beneficial owner
and/ or the true buyer (if known to be different).
(b) Within 21 days after the Transfer Notice is given any other Party may:
(i) if the Transfer Notice is accompanied by details of a bona fide
offer, require MTV to produce to it such further evidence as it
may reasonably require to enable it to establish the bona fides
of the offer by the Prospective Purchaser; or
(ii) if the Transfer Notice is not accompanied by details of a bona
fide offer, serve on MTV and the Company a notice requiring the
Fair Value of the Offer Shares to be determined ("Valuation
Notice").
(c) The other Parties shall be entitled within a period of 21 days after
any Transfer Notice is given or the date of provision to them of such
further evidence or information as may be requested under Clause
11.8.1(b) as the case may be (whichever is the later), to serve a
purchase notice ("Purchase Notice") on MTV stating:
(i) that it wishes to purchase the Offer Shares at the price stated
in the Transfer Notice; or
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(ii) that it declines the Offer Shares.
(d) If MTV has not received a Purchase Notice (or Notices) under the terms
of Clause 11.8.1(c) aggregating the total number of Offer Shares or
having received the same has not within 30 days, thereafter received
the price for the Offer Shares in return for a transfer complying with
Clause 11.7, it shall be entitled to sell all, but not less than all,
of the Offer Shares to the Prospective Purchaser or otherwise to any
person at the price and on the terms set out in the Transfer Notice
provided that if such sale is not completed within 60 days after the
expiry of the relevant time period referred to in Clause 11.8.1(c),
subject to any extension thereof under Clause 11.10(c) hereof, the
right to sell the Offer Shares to the Prospective Purchaser or any
other person shall lapse.
(e) The other Parties shall be entitled within a period of 21 days after
any Transfer Notice is given under Clause 11.8.1(b) (ii):
(i) to serve a Valuation Notice on MTV; or
(ii) decline the Offer Shares.
(f) In the event that a Valuation Notice is served, the provisions of
Schedule One shall apply. On determination of the Fair Value in
accordance with such Schedule, the Board shall forthwith upon receipt
of the auditors' determination notify all the Parties thereof and:
(i) any Party wishing to reject the Fair Value, shall do so by
written notice to all the other Parties, given within 7 days of
receipt of the auditor's determination, failing which the Fair
Value will be deemed to be accepted;
(ii) in the event that any Party does not accept the Fair Value, the
original Transfer Notice will be deemed to lapse forthwith and
thereafter Clause 11.8.1(a) shall apply;
(iii) in the event that the Fair Value is accepted by all Parties then
HTI and/or TIP shall within 14 days of any notice under this
sub-Clause 11.8.1(f) serve a purchase notice ("Purchase Notice")
on MTV stating the number of shares which it wishes to purchase.
(g) In respect of Clause 11.8.1(f)(iii), if MTV has not received a
Purchase Notice (or Notices) aggregating the total number of Offer
21
Shares or having received the same has not within 30 days thereafter
received the total price for the Offer Shares in return for a transfer
complying with Clause 11.7, MTV shall be entitled to sell all but not
part of the Offer Shares to any person at a price not less than that
represented by the Fair Value, provided that if such sale is not
completed within 60 days after the expiry of the relevant time period
referred to in Clause 11.8.1(c) subject to any extension thereof under
Clause 11.10(c) the right to sell the Offer Shares shall lapse.
(h) In the event of there being more than one other Party serving a
Purchase Notice, the Parties willing to purchase shall be entitled to
purchase the Offer Shares in proportion to the size of their
respective shareholding in the Company and the Directors shall
allocate the Offer Shares to such Parties accordingly. The Directors
shall forthwith give notice of such allocations to the Offeror and
such Parties, and the Offeror shall be bound upon payment to transfer
the Offer Shares so allocated to the purchasing Parties.
11.8.2 TIP Shares
(a) Should TIP wish to transfer any Shares (except for the transfer of
Shares permitted in Clause 11.3), it shall offer them to HTI by
serving a transfer notice ("Transfer Notice") on HTI stating the
number of Shares ("Offer Shares") which it proposes to sell and
whether any shareholder loans or part thereof are to be sold as
condition of the sale of the Offer Shares together with:
(i) the price and other terms, if any, at which it is willing to sell
its Offer Shares and shareholder loans, such price not being
higher or the terms more onerous than those to any bona fide
third person offering to buy the Offer Shares or, in the case of
shareholders loans, outstanding amounts of such loans and
including the accumulated interest thereon, if any;
(ii) full details of the terms of any bona fide offer it has received
to purchase the Offer Shares, if any; and
(iii) the identity of the person making the offer ("Prospective
Purchaser") and its ultimate parent company and beneficial owner
and/or the true buyer (if known to be different).
(b) Within 21 days after the Transfer Notice is given HTI may, if the
Transfer Notice is accompanied by details of a bona fide offer,
require TIP to produce to it such further evidence as it may
reasonably require to enable it to establish the bona fides of the
offer by the Prospective Purchaser.
22
(c) HTI shall be entitled within a period of 21 days after any Transfer
Notice is given or the date of provision to it of such further
evidence or information as may be requested under Clause 11.8.2 (b) as
the case may be (whichever is the later):
(i) to serve a purchase notice ("Purchase Notice") on TIP stating
that it wishes to purchase the Offer Shares at the price stated
in the Transfer Notice; or
(ii) if the Transfer Notice is not accompanied by details of a bona
fide offer, serve on TIP and the Company a notice requiring the
Fair Value of the Offer Shares to be determined ("Valuation
Notice"); or
(iii) that it declines the Offer Shares.
(d) In the event that a Valuation Notice is served, the provisions of
Schedule One shall apply. On determination of the Fair Value in
accordance with such Schedule, the Board shall forthwith upon receipt
of the auditors' determination notify TIP and HTI and the provisions
of Clause 11.8.2 (c) (i) shall apply mutatis mutandis (save that the
price for the Offer Shares shall be the Fair Value determined by the
auditors).
(e) If TIP has not received a Purchase Notice for the Offer Shares or
having received the same has not within 30 days thereafter received
the total price for the Offer Shares in return for a transfer
complying with Clause 11.7, TIP shall be entitled to sell all but not
part of the Offer Shares to the Prospective Purchase at a price and
on the terms set out in the Transfer Notice provided that if such sale
is not completed within 60 days after the expiry of the relevant time
period referred to in Clause 11.8.2 (c) subject to any extension
thereof under Clause 11.10 (c) the right to sell the Offer Shares
shall lapse.
11.8.3 HTI Shares
TIP and MTV shall not have any rights of first refusal over HTI selling its
shares and notwithstanding Clause 11.3, HTI may freely transfer its Shares
to any third party.
11.9 Tag Along
Subject to Clause 11.10, in the event that TIP intends to sell any or all
of its Shares ("the Sale Shares") otherwise than as permitted by Clause
11.3:
23
(a) it shall notify MTV in writing stipulating the principal terms and
conditions of any such sale, particularly as to the price and
timescale thereof ("the Sale Notice");
(b) MTV may, by written notice to TIP, within 14 days or such longer
reasonable period permitted by the timescale shown by the Sale Notice,
require TIP to procure that the intended purchaser of the Sale Shares
shall extend its offer to purchase from MTV a number of its Shares
which is pro-rata to the number of Sale Shares that TIP is selling
with reference to their respective shareholdings in the Company, on
terms no less favourable than those relating to the Sale Shares;
(c) MTV shall thereafter co-operate with TIP and do all things necessary
to effect completion of a sale of the MTV Shares substantially on the
terms contemplated by the Sale Notice.
Provided that:
(i) it is hereby agreed and acknowledged that all negotiations in respect
of a sale under the provisions of this Clause 11.9 shall be conducted
by TIP who, however, shall take due note of any reasonable requests of
MTV in regard thereto; and
(ii) in the event that any such sale does not proceed to completion for
whatever reason, neither party shall have any claim against the other
in respect thereof, whether for damages, costs or otherwise.
11.10 Sectoral Caps
It is hereby agreed that:
a) the Parties shall do all things necessary to ensure that any exercise
of the rights comprised in this Clause 11 shall not give rise to any
breach of the sectoral caps of the Government of India then in force
relating to foreign investment in the telecom sector; and
b) any sale or transfer contemplated under the provisions of this Clause
11 shall be subject to any necessary Government or regulatory
approvals, whether in respect of the said sectoral caps or otherwise;
and
c) any time limit imposed by the provisions of this Clause 11 shall be
extended pro tanto in respect of any period reasonably necessary to
obtain any approval under Clause 11.10(b); Provided that, the
24
Parties shall use all reasonable endeavours to expedite the obtaining
of any such approvals; and
(d) if any Party is unable to take up any Transfer Shares or any part
thereof due to Indian law or foreign investment regulations, such
Party shall be entitled to nominate any third party acceptable under
such law to purchase the Offer Shares or any part thereof.
11.11 Deed of Adherence
If Shares are being transferred:
(a) pursuant to Clause 11.3; or
(b) to a Prospective Purchaser pursuant to Clause 11.8,
the Shareholder transferring those Shares must procure prior to such
transfer that the Subsidiary, Affiliate, Prospective Purchaser or other
person, as the case may be, agrees to be bound by this Agreement by signing
a deed of adherence in a form approved by the Board if it is not already so
bound.
12. MAINTENANCE OF LICENCES, GOVERNMENT APPROVALS
Each of the Parties shall (to the extent it is within its power to do so)
procure that the Company shall.
(a) use its best endeavours to obtain and maintain in full force and
effect all governmental or other approvals, consents, licences,
authorisations, declarations, filings and registrations as may be
required or advisable for the carrying on of its business ("Relevant
Authorisations"); and
(b) obtain and keep in effect such new or additional Relevant
Authorisations as may become necessary for the carrying on of its
business.
13. TERM, TERMINATION AND DISPUTES
13.1 Term
This Agreement shall continue in force from the date hereof for a period of
30 years, at which time this Agreement shall be automatically renewed for
consecutive periods of five years each unless terminated by any Party, as
to itself, by giving to the other Parties 12 months' prior written notice
25
of termination, such notice to expire at the end of the 30 year period or
at the end of each subsequent period of five years, as the case may be.
13.2 Rights of Parties on Winding Up
The Parties may prove in the winding-up of the Company to the maximum
extent permitted by law for all sums due or to fall due to them
respectively from the Company and shall exercise all rights of set off and
generally do all such other acts and things as may be available to them in
order to obtain the maximum receipts and recoveries.
13.3 Agreement Terminates on Winding Up
In the event of the winding up of the Company, this Agreement shall
terminate and all of the terms of this Agreement shall cease to bind the
Parties. Termination of this Agreement shall not affect the rights of any
Party to exercise its rights in respect of any breach of this Agreement by
any or all of the Parties prior to the winding up of the Company. In the
event of any Party ceasing to have any legal or beneficial interest in any
Shares, the terms of this Agreement shall cease to bind such Party (except
Clauses 14 and 15 which shall continue to bind such Party) without
prejudice to the rights of the other Parties to exercise their rights in
respect of any breach of this Agreement by the departing Party prior to its
ceasing to have any such interest, and if none of its Subsidiaries own any
Shares, the Party ceasing to have such interest shall cause the Directors
and Managing Director (if any) nominated by it to resign immediately.
13.4 Arbitration and Consultation
13.4.1 Consultation
In the case of any dispute arising out of or in connection with this
Agreement or its performance, including any question regarding its
existence, validity or termination, the Parties shall first endeavour to
reach an amicable settlement through mutual consultations and negotiations.
If the parties are unable to reach an amicable settlement within 30 Banking
Days from the date on which the dispute arose (except as to any matter for
which express provisions are made in this Agreement), any of the Parties
may make a reference to arbitration in accordance with Clause 13.4.2.
13.4.2 Arbitration
(a) In the absence of any settlement of disputes under Clause 13.4.1 any and
all disputes or differences arising out of or in connection with this
26
Agreement or its performance shall be submitted to arbitration at the
request of a Party upon written notice to that effect to the other Party/
Parties and such arbitration shall be conducted in accordance with the
Indian Arbitration and Conciliation Act, 1996 (the "Arbitration Act") by a
panel consisting of three (3) arbitrators.
(b) While submitting the dispute or difference to arbitration in accordance
with sub-clause (a) above, the Party, while so submitting shall, in its
notice, specify the name of one arbitrator appointed by it. Within 30
Banking Days of the receipt of notice, the other shall appoint an
arbitrator. The third arbitrator (who will act as the chairman) shall be
nominated by the two arbitrators appointed as aforesaid or, failing such
nomination within 30 Banking Days of the appointment of the second
arbitrator, shall be appointed in accordance with the Arbitration Act. Each
of the arbitrators shall be either a retired judge of the Supreme Court of
India or retired judge of one of the high Court of India or a reputed
member of the Bar Council of India having at least 15 years of experience
as an advocate.
(c) The language of the arbitration shall be English. The venue of the
arbitration shall be at Mumbai, India.
(d) The Parties agree that the award of the arbitrators shall be final and
binding upon the Parties, and that none of the Parties shall be entitled to
commence or maintain any action in a court of law upon any matter in
dispute arising from or in relation to this Agreement, except for the
enforcement of an arbitral award granted pursuant to this Clause if
required.
14. NON-COMPETITION
14.1 Restricted Business
Each of the Parties undertakes to the others that during the currency of
this Agreement:
(a) neither it nor its Subsidiary or Affiliate will carry on or be
engaged, concerned or interested directly or indirectly (whether as
shareholder, director, employee, partner, agent, or otherwise):
(i) in any business described in Clause 6(a) in the areas where the
Company at that time carries on the business of provision of
cellular telephone services; or
27
(ii) in any business described in Clause 6(b) in the areas where the
Company at the time carries on the business of provision of
paging services.
(b) it will procure that its Subsidiaries and Affiliate abide by the
restriction in Clause 14.1(a).
14.2 Restriction on Employees
If any Party or its Subsidiary or Affiliate ceases to be Shareholder for
any reason other than solely by reason of the liquidation or winding-up of
the Company, that Party shall not, and shall procure that its Subsidiaries
do not, and shall use reasonable endeavours to procure that its directors,
officers or key employee do not for a period of two years from the date of
such reason, directly or indirectly, carry on or be interested in any
business which if carried on by a Party would be in breach of Clause 14.1
(a). However the aforesaid shall not apply to any directors, officers or
key employee who prior to execution of this Agreement has either directly
or indirectly carried on or was interested in any business which would
breach Clause 14.1 (a).
14.3 Exception
Notwithstanding anything to the contrary, the provisions of this Agreement
shall not prevent any director or shareholder of TIP in the ordinary course
of business either directly or indirectly, from making any investments or
from being engaged or concerned in any business in the telecom sector
except as to any investments in BPL Systems Ltd and/or any other private
paging operator in the circles in which the Company operates its paging
services pursuant to a license issued by the Department of
Telecommunication in this regard.
15. CONFIDENTIALITY AND PROTECTION OF NAME
15.1 Agreement Confidential
The Parties agree to keep secret and confidential and not to disclose,
except to the extent required by law or any regulatory authority, to any
third party without the prior written consent of MTV, TIP and HTI any
information or documents relating to the operation of the business of the
Company.
Any formal press or other public announcement in writing relating to this
Agreement or any of its terms shall be in a form previously agreed MTV, TIP
and HTL.
28
15.2 Xxxxxxxxx not to use "Max"
HTI shall not and shall use its best efforts to ensure that its
Subsidiaries and Affiliates and their respective directors, and officers do
not use a name including the word "Max" or any logo or trademark used by
MTV or its Subsidiaries or used by the Company or any word, logo or
trademark similar thereto.
15.3 MTV not to use "Xxxxxxxxx"
MTV shall not and shall use its best efforts to ensure that its
Subsidiaries and Affiliates and their respective directors and officers do
not use, a name including the word "Xxxxxxxxx" or any logo or trademark
used by HTI or its Subsidiaries or Affiliates or used by the Company or any
word, logo or trademark similar thereto.
15.4 TIP not to use "Max" or "Xxxxxxxxx"
TIP shall not use the words "Max" or "Xxxxxxxxx" and shall use its best
efforts to ensure that its Subsidiaries and Affiliates and their respective
directors and officers do not use, a name including the word "Xxxxxxxxx" or
"Max", or any logo or trademark used by either HTI, MTV, or the Company or
any word, logo or trademark similar thereto.
15.5 Existing Names
Nothing in this Clause 15 shall prevent the continued use of any existing
name, logo or trademark of the Company. Provided that 90 days notice (or
such shorter period as MTV shall agree) shall be given to MTV of any
intention to cease the use of the "Max" name.
15.6 Injunctive Relief
The obligations cast upon the Parties by this Clause 15 are extremely
valuable, for which no adequate monetary compensation may be available, and
accordingly performance of the said obligations by the other Party forms
the very substance of this Agreement and goes to its very root and intent
for which the aggrieved Party shall be, notwithstanding any other
stipulation in this Agreement (including the arbitration provision),
entitled to injunctive relief from the appropriate law courts in the event
of the failure of the other Party to perform the said obligations.
15.7 Survival
The rights, duties and obligations contained in this Clause 15 shall
survive termination of this Agreement or the winding up of the Company.
29
16. AGREEMENT
16.1 Agreement to Prevail
If any provision of the Memorandum or the Articles at any time conflicts
with any provision of this Agreement then, to the extent permitted by
Indian law, as between the Parties, the provisions of this Agreement shall
prevail.
16.2 Amendment of Memorandum and Articles
Each of the Parties hereby undertakes that it shall whenever necessary
exercise all voting and other rights and powers available to it to procure
the amendment of the Memorandum and Articles to the extent necessary to
permit the Company and its affairs to be operated as provided herein so
that the same are consistent with the provisions of this Agreement.
17. NOTICES
Any notice to be given by any Party to this Agreement should be in writing
and shall be deemed duly served if delivered personally or sent by telex or
fax or by prepaid registered post (airmail in the case of international
mail) to the addressee at the address, telex number or fax number set
opposite its name below or at such other address, telex number or fax
number as the Party to be served may have notified as its address, telex
number or fax number for service:
Max Telecom Ventures Limited
To: the Registered Office address stated above (to the attention of
the Director)
Copy to:
00-X Xxxxxx Xxxxx
Xxxx XX, Xxx Xxxxx-000000
Xxxxx.
Tel: (00-00) 0000000
Telex: (91 11) 62505
Fax: (00 00) 0000000
Attn: Director
30
Xxxxxxxxx Telecommunications (India) Limited
To: 0xx xxxxx
Xxx Xxxxxxxx
Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx
Attn: Company Secretary
Copy to: 18/F Two Harbourfront
00 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Tel:(000) 0000 0000
Fax:(000) 0000 0000
Attn.: The Group Managing Director
Telecom Investments India Private Limited
To: Bakhtawar 0xx Xxxxx
000 Xxxxxxx Xxxxx
Mumbai 400 021
Attn: Xxxx Xxxxxxxx
Fax: 00-00-0000000
Xxxxxxxxx Xxx Telecom Limited
To: Bhai Xxxxx Xxxxx Nagar
Railmajra
Tehsil Xxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Xxxxxx 000000
Attn: Company Secretary
Copy to: Sahas Building, 000/0
Xxx Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxx-000000
India
31
Attn: Managing Director
Fax: 00-00-0000000
Any notice sent by telex or fax shall be deemed served upon despatch, with
receipt of answer back in the case of telex and on confirmation of good
receipt in the case of a fax, and any notice served by registered post
shall be deemed served 10 days after posting airmail, whether to an address
in India or an address outside India. In proving the service of any notice
it will be sufficient to prove, in the case of service by registered post,
that such letter was properly stamped, registered, addressed and placed in
the post and in the case of a telex on receipt of the correct answer back.
18. MISCELLANEOUS
18.1 Legal and other costs
Each Party shall be responsible for the legal fees, costs and expenses
incurred by it in the preparation, negotiation and execution of this
Agreement.
18.2 Complete Agreement
This Agreement, and any agreements to be entered into pursuant thereto
embody all the terms and conditions agreed upon between the Parties and as
from the Effective Date supersedes and cancels in all respects all previous
correspondence, understandings, agreements and underlings (if any) between
the Parties with respect to the subject matter hereof, whether such be
written or oral.
18.3 Unenforceable Provisions
In the event that any provision contained in this Agreement or any part
thereof shall for any reason be held to be invalid or unenforceable in any
respect under the laws of India, such invalidity or unenforceability shall
not affect any other provisions of this Agreement or the remaining parts
thereof which shall then be construed as if such unenforceable provision or
part thereof had never been contained herein.
18.4 No Partnership
Nothing herein shall be taken to constitute or create a partnership among
any of the Parties. No Party shall be deemed to be the agent of the other
and none of the Parties shall have any authority to bind the other Party in
any way except as provided in this Agreement.
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18.5 Amendment in Writing
This Agreement shall not be varied, amended or supplemented except by a
written instrument signed by or on behalf of all the Parties to be bound.
18.6 No assignment
Without prejudice to the provisions of Clause 10, this Agreement is
personal to the Parties and is not capable of being assigned in whole or in
part by any Party.
18.7 No Waiver
Failure of any Party at any time to require performance by any other Party
of any provision of this Agreement shall in no way affect the right of such
Party to require performance of that or any other provision, and any waiver
by such Party of any breach of this Agreement shall not be construed as a
waiver by such Party of any continuing or succeeding breach of such
provision a waiver of the provision itself or a waiver of any other right
under this Agreement.
18.8 Counterparts
This Agreement may be executed in several counterparts, and any single
counterpart or set of counterparts, signed in either case by all of the
Parties shall be deemed to be an original, and all taken together shall
constitute one and the same instrument.
18.9 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of India.
IN WITNESS WHEREOF this Agreement was executed by the Parties on the day and
year first above written.
SIGNED BY XXXX XXXX ) /s/ Xxxx Xxxx
For and on behalf of ) ------------------------------------
Xxxxxxxxx Telecommunications )
(India) Limited )
)
33
SIGNED BY XXXXXXXX XXXX & XXXXX XXXXXX ) /s/ Xxxxxxxx Xxxx & Xxxxx Xxxxxx
For and on behalf of ) ------------------------------------
Max Telecom Ventures Limited )
)
SIGNED BY XXXXX XXXXXXX ) /s/ Xxxxx Xxxxxxx
For and on behalf of ) ------------------------------------
Telecom Investments India Private )
Limited )
)
SIGNED BY XXXXXXX WINDLASS ) /s/ Xxxxxxx Windlass
For and on behalf of ) ------------------------------------
Xxxxxxxxx Xxx Telecom Limited )
)
34
SCHEDULE ONE - FAIR VALUE
Where Fair Value is to be determined under this Agreement in relation to any
Shares, it shall be determined in accordance with the following provisions of
this Schedule:
1. The auditors shall be jointly instructed by the Shareholder whose Shares
are to be transferred ("Transferor") and the intending purchaser. The
auditors shall value the Shares on the basis of an arm's length sale
between a willing buyer with the funds to buy and a willing seller having
regard to the terms of this Agreement.
2. The auditors shall be directed to advise the Company and the Parties of
their determination of the fair value of the Shares within 45 days or as
soon as practicable thereafter.
3. The decision of the auditors shall be final and binding on the Parties and
they shall be deemed to act as experts and not as arbitrators.
4. The costs of the auditors shall be borne equally between (i) the Transferor
and (ii) the Parties requesting the determination of the Fair Value.
5. Each of the Transferor and the other such Parties shall be entitled to make
such written submissions as the auditors may accept and each of them and
the auditors shall have such access to the books and records of the Company
as shall be reasonably required in connection with such determination.
35
