SECOND AMENDMENT TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED 15TH DAY OF SEPTEMBER, 2007
Exhibit
10.1
SECOND
AMENDMENT TO THE SHARE SUBSCRIPTION CUM PURCHASE AGREEMENT DATED 15TH DAY OF
SEPTEMBER, 2007
THIS
Amendment to the Share
Subscription cum Purchase Agreement dated 15th
September, 2007 (hereinafter referred to as “Agreement”) is entered on
this [ ] day of January, 2008 at Mumbai
BY
AND AMONG
INDIA
GLOBALIZATION
CAPITAL, INC. a company
organized under the laws of the State of Maryland and
having its office address at 0000
Xxxxxxxxxx Xxxxxx Xxxxxxxx, XX 00000, acting
directly or indirectly through
one or more of its newly formed non US Affiliates, alongwith such newly formed
non-US Affiliates (hereinafter collectively referred to as “Investor”,
which expression shall, unless it be
repugnant to the context or meaning thereof, be deemed to mean and include
its
successors and assigns) of the FIRST PART;
AND
SRICON
INFRASTRUCTURE PRIVATE
LIMITED, a company incorporated under the Indian Companies Act, 1956,
having its registered office at Sricon Xxxxx 00, Xxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx, Xxxxx (hereinafter referred to as "Company" which expression
shall, unless repugnant to the context or meaning thereof, be deemed to mean
and
include its successors) of the SECOND PART;
AND
THE
PERSONS whose names and
addresses are set out in Schedule 1 hereto (hereinafter
referred to as "Promoters", which expression
shall, unless repugnant to the context or meaning thereof, be deemed to mean
and
include their heirs, legal representatives, executors, and administrators)
of
the THIRDPART.
(The
Investor, the Promoters and the Company may hereinafter be referred to
individually as “Party”
and collectively as “Parties”, as the context may
require).
WHEREAS
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A.
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The
Parties entered into a Share Subscription cum Purchase Agreement
on the
15th
day of September, 2007 (the “SSA”), setting out the terms and conditions
subject to which the Investor would subscribe to the Subscription
Shares;
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B.
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Clause
3 of the SSA sets out the conditions to be satisfied by the Parties
prior
to the Investor subscribing to the Subscription Shares. Some of the
conditions to be satisfied by the Parties are as under: (i) completion
of
a business, financial, accounting, tax, technical, legal and regulatory
due diligence on the Company by the Investor and resolution of all
issues
arising therefrom to the satisfaction of the Investor on or before
45
Business Days from the date of this Agreement, (ii) resolution being
passed at a duly constituted meeting of the board of directors of
Investor
and a resolution being passed at duly constituted meeting of the
shareholders of the Investor, approving the subscription to the
Subscription Shares and the satisfaction of all other conditions
for the
Investor to effect a Business Combination as set forth in the Investor's
Prospectus dated March 3, 2006 as filed with the US Securities and
Exchange Commission, (iii) the Promoters obtaining written consents
from
all banks, financial institutions, lenders of the Company and all
other
third parties as may be required for change in shareholding of the
Company
in form and substance satisfactory to the Investor, (iv) each of
the
Promoters delivering to the Investor a no-objection certificate in
the
form contained in Schedule 4 to the SSA and a no-objection certificate
from the Company in the form contained in Schedule 4A to the SSA;
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C.
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The
Parties subsequently entered into an Amendment Agreement on December
19,
2007, (“First Amendment Agreement”) amending the terms of the SSA and
agreeing to subscribe to a portion of the Subscription Shares;
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D.
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The
Company is in need of urgent funds and pending satisfaction of the
conditions precedent set out in Clause 3 of the SSA, has requested
the
Investor to infuse further funds towards subscription to a portion
of the
Subscription Shares;
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E.
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The
Investor has agreed to subscribe to a portion of the Subscription
Shares
in the Company subject to the terms and conditions set out in this
Agreement.
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NOW,
THEREFORE, IN CONSIDERATION OF THE
MUTUAL PROMISES COVENANTS AND AGREEMENTS HEREIN CONTAINED, THE PARTIES AGREE
AS
FOLLOWS:
1. All
expressions used in this Agreement
but not defined, and defined
in the SSAor the First Amendment
Agreement, shall have the same
meaning
ascribed to it in the SSA or
First Amendment Agreement, as the
case may be.
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2.
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SUBSCRIPTION
TO PORTION OF
SUBSCRIPTION SHARES
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Subject
to the terms of this Agreement and relying on the Representations and
Warranties, covenants and indemnities given by the Promoters and the Company
under the SSA and the First Amendment Agreement, the Investor agrees to
subscribe from time to time, and the Company agrees to issue and allot to the
Investor, Shares in the Company, at the Issue Price, provided that subject
to
Clause 3, the funds remitted from time to time, shall be funded as advance
against Shares of the Company.
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3.
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COMPLETION
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Unless
otherwise directed by the Investor, the Parties shall proceed to complete the
allotment of such portion of Subscription Shares to the Investor as subscribed
by the Investor, at the Issue Price, simultaneously upon Completion under the
Amendment Agreement and in the same manner set out in Clause 5 of the First
Amendment Agreement.
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4.
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VALIDITY
OF SSA
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4.1
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Except
to the extent specifically modified by this Amendment Agreement,
all the
terms of the SSA and the First Amendment Agreement shall survive
and
continue to remain valid and binding on the Parties. Reference in
the
First Amendment Agreement to ‘Portion of Subscription Shares’ shall, where
appropriate, be deemed to mean reference to the ‘Portion of Subscription
Shares’ as increased by the portion of Subscription Shares agreed to be
subscribed under this Agreement from time to time and reference to
‘Portion of Subscription Price’ shall, where appropriate, be deemed to
mean reference to ‘Portion of Subscription Price’ as increased by the
funds remitted by the Investor towards subscription to Shares at
the Issue
Price under this Agreement, from time to time. It is clarified for
the
avoidance of doubt that the obligation to fund under this Agreement
or the
First Amendment Agreement or the SSA shall not extend to the amounts
already funded by the Investor.
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4.2
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Reference
in the SSA to subscription to Investor Shares or Subscription Shares
respectively, wherever they appear, shall be deemed to mean subscription
to Investor Shares or Subscription Shares as respectively reduced
by the
Portion of Subscription Shares (as adjusted in 4.1 herein) and reference
to payment of Investor Price or Subscription Price, respectively,
wherever
they appear in the SSA, shall be deemed to mean payment of Investor
Price
or Subscription Price as respectively reduced by the Portion of
Subscription Price (as adjusted in 4.1 herein).
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4.3
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This
Amendment Agreement shall become effective upon the execution and
delivery
of this Amendment Agreement by the Investor, the Promoters and the
Company.
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4.4
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Except
as expressly set forth in this Amendment Agreement, all agreements,
covenants, undertakings, provisions, stipulations, and promises contained
in the SSA and the First Amendment Agreement are hereby ratified,
readopted, approved, and confirmed and shall remain in full force
and
effect.
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5.
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RESOLUTION
OF DISPUTES
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(a)
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Amicable
Settlement: If any dispute arises between Investor and/or the Promoters
and/or Company during the subsistence of this Agreement or thereafter,
in
connection with the validity, interpretation, implementation or alleged
breach of any provision of this Agreement or regarding a question,
including the question as to whether the termination of this Agreement
by
one Party hereto has been legitimate (“Dispute”), the disputing Parties
hereto shall endeavour to settle such Dispute amicably. The attempt
to
bring about an amicable settlement shall be considered to have failed
if
not resolved within 60 days from the date of the Dispute.
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(b)
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Conciliation:
If the Parties are unable to amicably settle the Dispute in accordance
with Clause 5(a) within the period specified therein, the Parties
shall
forthwith but not later than 30 days after expiry of the aforesaid
period,
refer the Dispute to Mr. Ram Xxxxxxx and Xx. X.X. Xxxxxxxxxx for
resolution of the said Dispute. The attempt to bring about such resolution
shall be considered to have failed if not resolved within 30 days
from the
date of receipt of a written notification in this regard.
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(c)
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Arbitration:
If the Parties are unable to amicably settle the Dispute in accordance
with Clause 5(b) within the period specified therein, any Party to
the
Dispute shall be entitled to serve a notice invoking this Clause
and
making a reference to an arbitration panel of three arbitrators.
Each
party to the dispute shall appoint one arbitrator within 30 days
of
receipt of the notice of the Party making the reference, and the
two
arbitrators, so appointed shall appoint a third arbitrator. The
Arbitration proceedings shall be held in accordance with the Arbitration
and Conciliation Act, 1996. The decision of the arbitration panel
shall be
binding on all the Parties to the Dispute.
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(d)
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The
place of the arbitration shall be Mumbai, India.
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(e)
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The
arbitration proceedings shall be governed by the laws of India.
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(f)
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The
proceedings of arbitration shall be in the English language.
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(g)
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The
Arbitrator’s award shall be substantiated in writing. The court of
arbitration shall also decide on the costs of the arbitration proceedings.
The cost of arbitration shall be borne by the Company.
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(h)
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The
award shall be binding on the Parties subject to the Applicable Laws
in
force and the award shall be enforceable in any competent court of
law.
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(i)
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The
Mumbai court (including any appellant court) in India shall have
exclusive
jurisdiction.
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6.
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MISCELLANEOUS
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(a)
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No
Implied Waiver
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Subject
to the terms of this Agreement, the execution, delivery and performance of
this
Agreement shall not, except as expressly provided herein, constitute a waiver
or
modification of any provision of, or operate as a waiver of any right, power
or
remedy of the Parties under the SSA or First Amendment Agreement or prejudice
any right or remedy that either Party may have or may have in the future under
or in connection with the SSA or First Amendment Agreement or any instrument
or
agreement referred to therein. The Parties hereto acknowledge and agree that
the
Representations and Warranties of the Parties contained in the SSA and in the
First Amendment Agreement, the clauses on, including but not limited to
indemnity and confidentiality shall survive the execution and delivery of this
Agreement and the effectiveness hereof.
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(b)
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Governing
law
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This
Agreement shall be governed and construed in accordance with the laws of
India.
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(c)
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Costs
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Each
Party shall bear its own expenses incurred in preparing this
Agreement. The Company shall pay the stamp duty and other costs in
respect of this Agreement and the issue and allotment of the Portion of
Subscription Shares to the Investor.
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(d)
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Execution
in Counterparts
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This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which, taken together, shall constitute one and
the same instrument.
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(e)
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Assignment
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This
Agreement and the rights and liabilities hereunder shall bind and inure to
the
benefit of the respective successors of the Parties hereto, but no Party shall
assign or transfer any of its rights and liabilities hereunder to any other
Person without the prior written consent of the other Parties, which will not
be
unreasonably withheld. Notwithstanding anything stated above, the Investor
shall
be entitled to assign its rights and obligations hereunder, including its rights
over the pledge of Promoter Shares, to any of its Affiliates or its holding
company or ultimate parent company or their Affiliates, without the consent
of
the other Parties.
IN
WITNESS WHEREOF THE PARTIES TO THIS AGREEMENT HAVE SET AND SCRIBED THEIR HANDS
AT MUMBAI, ON THE DAY MONTH AND YEAR FIRST NOTED ABOVE, IN PRESENCE OF:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "INVESTOR
"
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)
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ON
THE [●] DAY OF [ ]
2008
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SIGNED
AND DELIVERED
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)
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BY
THE WITHINNAMED "COMPANY"
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BY
THE HAND OF Mr.
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(AUTHORISED
SIGNATORY) PURSUANT TO
THE
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RESOLUTION
PASSED BY THE
BOARD
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ON
THE [●] DAY OF [ ]
2008
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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)
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "Promoters"
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)
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)
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ON
THE [●] DAY OF [ ] 2008
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SCHEDULE
1
NAME
AND DETAILS OF
PROMOTERS
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Name
of
Shareholder
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Number
of
Shares
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%
shareholding on a Fully Diluted
Basis
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Xxxxxxxx
Xxx Srivastava
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1579711 | 53.88 | |||||
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Indravati
Devi Srivastava
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1152640 | 39.31 | |||||
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Xxxxxxx
Xxxxxx Xxxxxxxxxx
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00000 | 3.30 | |||||
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Bihari
Xxx Xxxxxxxxxx
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16000 | 0.55 | |||||
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Xxxxxxxxx
Xxx Srivastava
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55168 | 1.88 | |||||
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Ramdulari
Devi Srivastava
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32000 | 1.09 | |||||
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Total
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2932159 | 100 | |||||
