EXHIBIT 10.7
SHAREHOLDERS AGREEMENT
among
GOVERNMENT OF INDIA
and
STERLITE INDUSTRIES (INDIA) LTD
and
BHARAT ALUMUNIUM COMPANY LIMITED
March 2, 2001
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT is made and entered into on this 2nd day of March
2001.
BY AND AMONG:
THE PRESIDENT OF INDIA, acting through and represented by the Secretary,
Ministry of Mines and Minerals, Department of Mines of the Government of India
(hereinafter referred to as the "GOVERNMENT")
-and-
STERLITE INDUSTRIES (INDIA) LTD a company duly incorporated and existing under
the provisions of the Act (as hereinafter defined/laws of India with its
registered office at X-00/0, Xxxxx XXXX Xxxxxxxxxx Xxxx. Waluj, Dist: Aurangabad
- 431 133. Maharashtra, India (hereinafter referred to as the "STRATEGIC
PARTNER" or the "SP" which expression shall include its successors, Affiliates
(as defined hereinafter), permitted assigns and liquidators)
and
BHARAT ALUMINIUM COMPANY LIMITED, a public limited company duly incorporated and
existing under the provisions of the Companies Act, 1956, as amended, with its
registered office at Aluminium Sadan, Scope Complex, Lodi Road, New Delhi, India
(hereinafter referred to as the "COMPANY")
RECITALS
A. The Company is engaged in a business that, among others, involves
manufacture, sale and distribution of primary aluminium metal and
aluminium products.
B. The authorized share capital of the Company is Rs. 500,00,00,000/- (Rupees
Five Hundred Crores Only) divided into 50,00,00,000/- (Fifty Crores)
voting equity shares of Rs. 10 each.
C. The issued paid-up share capital of the Company is Rs. 220,62,45,000/-
(Rupees Two Hundred Twenty Crores Sixty Two Lacs Forty Five Thousand Only)
divided into 22,06,24,500 (Twenty Two Crores Six Lacs Twenty Four Thousand
Five Hundred Only) voting equity shares of Rs. 10 each.
D. The Government is the beneficial and legal owner of 22,06,23,700 (Twenty
Two Crores Six Lacs Twenty Three Thousand Seven Hundred Only) voting
equity shares of the Company representing 99.99% of the total issued and
paid up share capital of the Company.
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E. The remaining 800 voting equity shares are being held by nominees of the
Government, (hereinafter referred to as the "NOMINEE SUBSCRIBERS") more
specifically stipulated in Schedule "A" of the Share Purchase Agreement.
F. The SP. the Company and the Government are parties to an agreement of even
date whereby the Government has, subject to the terms and conditions
stated therein, agreed to sell and cause the Nominee Subscribers to sell
to the SP, and the SP has agreed to purchase from the Government and the
Nominee Subscribers, 11,25,18,495 (Eleven Crores Twenty Five Lacs Eighteen
Thousand Four Hundred Ninety Five) voting equity shares of the Company
(such shares, the "PURCHASE SHARES", and such agreement, the "SHARE
PURCHASE AGREEMENT").
G. The Parties have entered into this Agreement to record their agreement as
to the manner in which the Company's affairs shall be conducted after the
SP acquires the Purchase Shares from the Government and to grant to each
other certain rights and obligations with respect to their ownership,
directly and indirectly, of the voting equity shares of the Company.
H. Subject to Clause 7.2, the Parties envision that all employees of the
Company on the date hereof shall continue in the employment of the
Company.
I. The Government, as a significant shareholder of the Company shall extend
reasonable co-operation to the Company to facilitate the conduct of the
business of the Company.
J. The SP recognises that the Government in relation to its employment
policies follows certain principles for the benefit of the members of the
Scheduled Caste/Scheduled Tribes, physically handicapped persons and other
socially disadvantaged categories of the society. The SP shall use its
best efforts to cause the Company to provide adequate job opportunities
for such persons. Further, in the event of any reduction in the strength
of the employees of the Company, the SP shall use its best efforts to
ensure that the physically handicapped persons are retrenched at the end.
NOW, THEREFORE, in consideration of the premises and mutual agreements and
covenants contained in this Agreement and other good and valuable consideration
(the receipt and adequacy of which are hereby mutually acknowledged), each of
the Parties hereto hereby agree as follows:
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ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS
In addition to the terms defined in the introduction to and the text of
this Agreement, wherever used in this Agreement, the following words and
terms shall have the meanings set out below:
"ACT" means the Indian Companies Act, 1956, as now enacted or as the same may
from time to time be amended, re-enacted or replaced;
"AFFILIATE" means, with respect to any Party, any Person which is a holding
company or subsidiary of such Party, or any Person which, directly or
indirectly, (a) owns or controls such Party, (b) is owned or controlled by such
Party, or (c) is owned or controlled by the same Person who, directly or
indirectly, owns or controls such Party. For the purposes of this Agreement, the
terms "holding company" any "subsidiary" shall have the meanings ascribed to
them under Section 4 of the Act, and the term "control" shall mean:
a) control over the composition of Board of Directors of an entity; or
b) control of at least 51% of the issued equity share capital of a company.
Provided however that in no event shall the Company be deemed an Affiliate of
either the Government or the SP.
"AGREEMENT" means this Shareholders Agreement and all attached schedules and all
instruments supplemental to or in amendment or confirmation of this Agreement
entered into by the Parties in writing;
"BOARD" means the board of directors of the Company;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which the
principal commercial banks located in Mumbai/New Delhi are open for business
during normal banking hours;
"EVENT OF BANKRUPTCY" in respect of a Person (other than the Government) means
the first to occur of any of the following:
i) if the Person makes an assignment for the benefit of creditors; or
ii) if a Provisional or Official Liquidator is appointed in relation to
any Person by an appropriate court under any applicable Law; or
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iii) if the Person avails itself of the benefit of any other legislation
for the benefit of debtors: or
iv) if the Person applies to an appropriate court for voluntary
liquidation under any applicable Law.
"FAIR VALUE" means, with respect to any voting equity shares of the Company, the
price of such equity shares as determined in accordance with Schedule 6.1 of
this Agreement and expressed in terms of money;
"PARTIES" means, collectively, the Government, the SP and the Company and any
other Person which becomes a party to this Agreement, and "Party" means any one
of them;
"PERSON" includes any individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organisation, trust, body corporate, and a natural person in his capacity as
trustee, executor, administrator, or other legal representative;
"SECURITIES" means, collectively, loans made to the Company by its shareholders,
and the voting equity shares of the Company;
"SHAREHOLDERS" means the Government and the SP together with such other Persons
as may become parties to this Agreement as an equity shareholder of the Company,
collectively, and "Shareholder" means any one of such parties individually;
"SHARE PURCHASE AGREEMENT" shall have the meaning ascribed to it in Recital F of
this Agreement; and
"VALUATION DATE" has the meaning set forth in Clause 6.1.
1.2 CERTAIN RULES OF INTERPRETATION IN THIS AGREEMENT,
(a) the descriptive headings of Articles and Clauses are inserted solely for
convenience of reference and are not intended as complete or accurate
descriptions of content thereof and shall not be used to interpret the
provisions of this Agreement;
(b) the use of words in the singular or plural, or with a particular gender,
shall not limit the scope or exclude the application of any provision of
this Agreement to any Person or Persons or circumstances as the context
otherwise permits;
(c) the terms "hereof, "herein" , "hereto", "hereunder" or similar expressions
used in this Agreement mean and refer to this Agreement and not to any
particular Article or Clause of this Agreement. The terms "Article" and
"Clause" mean and refer to the Article and Clause of this Agreement so
specified:
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(d) unless otherwise specified, time periods within or following which any
payment is to be made or act is to be done shall be calculated by
excluding the day on which the period commences and including the day on
which the period ends and by extending the period to the next Business Day
following if the last day of such period is not a Business Day; and
whenever any payment to be made or action to be taken under this Agreement
is required to be made or taken on a day other than a Business Day, such
payment shall be made or action taken on the next Business Day following.
(e) All capitalized words and expressions used in this Agreement but not
defined shall have the same meaning as ascribed to them in the Share
Purchase Agreement.
(f) The damages payable by either Party to the other of them as set forth in
this Agreement, are intended to be genuine pre-estimates of loss and
damage likely to be suffered and incurred by the Party entitled to receive
the same and are not by way of penalty or liquidated damages.
1.3 SCHEDULES
The schedules annexed to this Agreement, as listed below, form an integral
part of this Agreement.
Schedule 4.5 Matters Requiring Special Consent;
Schedule 6.1 - Principles of Valuation;
Schedule 6.2 - Mechanism relating to sale and purchase between the Parties
of shares of the Company in the future;
Schedule 11.1 - Arbitration Procedures.
ARTICLE 2
EFFECTIVE DATE, PURPOSE AND SCOPE
2.1 EFFECTIVE DATE
This Agreement shall come into force and effect from and after the Closing
Date.
2.2 COMPLIANCE WITH AGREEMENT
Each Shareholder, being a party to this Agreement, agrees, at all times,
to vote and act as a shareholder of the Company to fulfill the provisions
of this Agreement and in all other respects to comply with, and use all
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reasonable efforts to comply and to cause the Company to comply with, this
Agreement. Each of such Shareholder shall, at all times, cause its
respective nominee(s) as directors of the Company to act in accordance
with this Agreement, amend the articles of association of the Company to
conform to this Agreement, and cause the Company to adopt such amended
articles of association through the passage of appropriate Board and
shareholder's resolutions and take other actions as required under law in
this regard.
2.3 COMPLIANCE BY THE COMPANY
The Company undertakes to carryout and be bound by the provisions of this
Agreement to the fullest extent that it has the capacity and power at law
to do so. The Shareholders shall, to the extent possible, cause the
Company to take all steps as may be necessary to effectively adopt, abide
by and ratify the terms of this Agreement.
2.4 COMPLIANCE WITH LAWS
In carrying out the obligations specified herein, the Parties shall comply
with all applicable Laws.
ARTICLE 3
EQUITY PARTICIPATION; FINANCIAL SUPPORT
3.1 EQUITY PARTICIPATION
(a) The Company and the Government represent and warrant to the SP that upon
the occurrence of the Closing, the Shareholders' respective equity
shareholding in the Company shall be as follows:
Percentage of Total Equity
Shareholder Number of Voting Equity Shares Share Capital
-------------------------- ------------------------------ --------------------------
Government 10,81,06,005 49%
SP and Purchaser Nominees 11,25,18,495 51%
3.2 ADDITIONAL CAPITAL
(a) Notwithstanding any other provision of this Agreement, if the Board, in
exercise of good faith and in its reasonable judgment, determines that the
Company requires additional funds and such funds cannot be obtained from
banks or other financial institutions on reasonable arms-length commercial
terms (or terms
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that are more favourable to the Company than reasonable arms-length
commercial terms) and without guarantees of or recourse to, the
Shareholders or any Person not dealing at arm's length with any
shareholder, the Board may request, by issuance of a notice (the "FUNDING
NOTICE") to all the shareholders of the Company, to contribute, within 90
Business Days after the issuance of the Funding Notice (the "FUNDING
PERIOD"), additional capital to the Company, on a pro rated basis
depending upon the number of voting equity shares of the Company then held
by such shareholders, by way of subscription for additional voting equity
shares in accordance with Section 81(1) of the Act or provide a loan to
the Company, all as determined by the Board and set forth in the Funding
Notice.
(b) If additional capital is to be contributed pursuant to Clause 3.2(a) by
way of subscription for additional voting equity shares of the Company,
then the subscription price for each such additional voting equity shares
shall be determined by the Board and set out in the Funding Notice. The
Company shall, promptly upon the receipt of such subscription price, issue
to its shareholders the appropriate number of voting equity shares based
upon the payment received from each such Shareholder. Such voting equity
shares shall rank pari passu with the existing Shares in all respects
except for the purposes of dividend that shall be pro rated to the period
for which such newly issued shares are in existence.
(c) If any offer to subscribe for voting equity shares of the Company pursuant
to Clause 3.2(a) (such offer, the "RIGHT") includes a right to renounce
the Right in favour of any other Person, then, no Shareholder shall
renounce such Right in favour of any other Person (other than an Affiliate
of the renouncing Shareholder) without first giving the other Shareholder
a reasonable opportunity to acquire such Right, either directly or through
its nominees on the same terms and conditions that such Right is proposed
to be renounced in favour of any other Person (other than an Affiliate of
the renouncing Shareholder).
(d) Any Person other than a Party hereto, who acquires any Shares pursuant to
Clause 3.2(c), shall execute a deed of adherence and an undertaking to
adhere to the terms and conditions of this Agreement. The rights of such
Person shall be determined in the following manner:
i) Subject to the provisions of Section 3.2(c) above, in the event that
a non-renouncing Shareholder exercises its option to cause its
nominee to acquire the Right, such non-renouncing Shareholder shall
exercise all the rights and privileges on behalf of such nominee and
shall be responsible for all the duties and obligations of such
nominee under the terms of this Agreement. The rights of the
non-renouncing Shareholder and such nominee shall be the rights
available to the non-renouncing Shareholder under this Agreement and
no additional rights or privileges shall accrue to or be available
to the non-renouncing Shareholder or the nominee.
ii) Subject to the provisions of Section 3.2(c) above, in the event that
the non-renouncing Shareholder
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does not exercise its option to acquire or cause its nominee to
acquire the Right and the renouncing Shareholder offers the Right to
a third party, such renouncing Shareholder shall exercise all the
rights and privileges on behalf of such third party and shall be
responsible for all the duties and obligations of such third party
under the terms of this Agreement. The rights of the renouncing
Shareholder and such third party shall be the rights available to
the renouncing Shareholder under this Agreement and no additional
rights or privileges shall accrue to or be available to the
renouncing Shareholder or the third party.
(e) For the avoidance of doubt, under no circumstances shall a failure to
provide funds by a Shareholder pursuant to a Funding Notice be considered
to be a default by such Shareholder under this Agreement or make such
Shareholder in any way liable for the payment of such funds.
3.3 ADHERENCE BY AFFILIATES
In the event that any of the Affiliate(s) of the SP becomes a Shareholder
of the Company, whether pursuant to a renunciation of a Right under Clause
3.2 or otherwise, such Affiliate of the SP shall adhere to this Agreement
and be compliant with the provisions hereof.
ARTICLE 4
MANAGEMENT OF THE COMPANY
4.1 BOARD OF DIRECTORS
a) So long as the SP, directly or indirectly through its Affiliates,
continues to hold at least 51% of the voting equity share capital of
the Company, the Company shall have a Board consisting of not more
than 12 directors who shall be appointed by the Government and the
SP in proportion of their equity shareholding in the Company.
Provided however that the SP shall have at all times the right to
appoint such number of directors on the Board such that the SP
always has control over the majority of the votes on the Board.
b) The Parties agree that immediately after the sale and purchase of
the Purchase Shares between the Government and the SP, the Board
shall comprise of 9 directors of which the SP shall have the right
to appoint 5 directors (including the chief executive
officer/managing director).
c) The Government shall have the right to appoint the remaining 4
directors who shall all be non-working directors of the Company.
Provided that the Government agrees it shall not appoint any
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person as its nominee to the Board if such person is a director or
employee of any other company or entity that is engaged in any
activity or business in competition with the business of the
Company.
d) Both the Government and the SP shall vote the equity shares of the
Company held by them to elect/remove the directors nominated in
accordance with this Agreement.
e) In the event that the Board constitutes a share transfer committee
for the purposes of effecting the transfer of Shares, such share
transfer committee shall include one nominee of the SP and the
Government each.
4.2 REMOVAL AND REPLACEMENT OF NOMINEES
The Government and the SP shall be entitled to remove any director
nominated by them by notice to such director and the other Parties. Any
vacancy occurring on the Board by reason of the death, disqualification,
inability to act, shall be filled by the Party whose nominee was so
affected so as to maintain a Board that is consistent with the provisions
of Clause 4.1.
4.3 MEETING OF BOARD
The Board shall meet at least once every calendar quarter period during
the term of this Agreement and in the event that a meeting of the Board is
not held during any such quarter period, any director may call a meeting
of the Board on 48 hours prior notice to the other directors. At each
meeting of the Board, unless waived by atleast one nominee director each
of the SP and the Government, the chief executive officer/managing
director of the Company shall report duly to the Board with respect to the
current status of the operations of the Company and with respect to all
major developments or planned action involving the Company and shall
present to the meeting complete current financial information with respect
to the Company.
4.4 QUORUM
a) The quorum requirements for the Board and shareholders meeting of
the Company shall be governed by the provisions of the Act and the
SP shall ensure that the Government is given reasonable notice of
all such meetings in a timely manner.
b) Notwithstanding anything to the contrary in sub-clause 4.4(a) above,
the presence of at least one
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nominee director each of the Government and the SP, in case of a
Board meeting, or at least one authorised representative each of the
Government and the SP, in case of a general meeting, shall be
necessary to constitute quorum for any meeting in which a resolution
for any of the matters specified in Schedule 4.5 is to be passed and
a notice of not less than 7 (seven) days shall be given to the
Government and the SP for any such meeting, unless the Government
and the SP agrees to a shorter notice in writing.
c) In the event that no nominee director or authorised representative
of either the Government or the SP is present at a meeting referred
to in sub-clause 4.4(b) above, such meeting shall stand adjourned to
the same day in the next week, at the same time and place, or to
such later day as may be notified to the Government or the SP as the
case may be.
d) In the event that no nominee director or authorised representative
of the same Shareholder, whose nominee director/authorised
representative was not present in the meeting referred to in
sub-clause 4.4(b), is present at the adjourned meeting referred to
in sub-clause 4.4(c) above, such meeting shall stand adjourned to
the same day in the next week, at the same time and place, or to
such later day as may be notified to such Shareholder.
e) Notwithstanding anything to the contrary in sub-clause 4.4(b) above,
in the event that no nominee director/authorised representative of
the same Shareholder, whose nominee director/authorised
representative was not present in the meetings referred to in
sub-clauses 4.4(b) and 4.4(c), is present at the adjourned meeting
referred to in sub-clause 4.4(d), it shall be deemed that the
presence of the nominee director/authorised representatives of such
Shareholder is not required for such meeting and the
directors/shareholders present at such adjourned Board/general
meeting shall be entitled to proceed with the items on the agenda in
such manner as they deem fit even though such items may be relating
to matters listed in Schedule 4.5.
4.5 APPROVAL OF MATTERS
Notwithstanding any other provision of this Agreement or otherwise
permitted or provided under the Act, no obligation of the Company or any
of its subsidiaries shall be entered into, no decision shall be made and
no action shall be taken by or with respect to the Company or any of its
subsidiaries in relation to the matters identified in Schedule 4.5, unless
such obligation, decision or action, as the case may be, is approved:
a) If at any meeting of the Company's shareholders duly called for the
purpose of considering such obligation, decision or action, by an
affirmative vote of the one authorised representative of both the
Government and the SP:
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b) If at the meeting of the Board, then subject to the provisions of
sub-clause 4.4(e) by at least one nominee director of each of the
Government and the SP.
4.6 VOTING
Excepting the matters listed in Schedule 4.5, the Government or any other
entity nominated by it shall, at all shareholders' meeting of the Company,
exercise the voting rights attached to the voting equity shares of the
Company held by the Government in the manner directed in writing by the
SP. For purposes of clarity and avoidance of doubt, on any resolution that
directly or indirectly relates to matters specified in Schedule 4.5, the
Government shall be free to exercise the voting rights attached to the
Company's shares held by it in the manner it deems fit.
4.7 MANAGING DIRECTOR
Throughout the term of this Agreement, the Company shall have a Managing
Director appointed by the Board in accordance with Clause 4.1(b). The
Managing Director shall be a member of the Board and shall manage the
daily operations of the Company. The term of the office of the Managing
Director shall be determined by a resolution of the Board. The Managing
Director shall function under the supervision, control and direction of
the Board and shall, subject to such supervision, control and direction,
have the authority to manage the business operations of the Company.
Subject to the provisions of Clause 4.5 read with Schedule 4.5, the powers
and duties of the Managing Director shall be defined and/or modified from
time to time by resolution of the Board, and shall include the powers and
duties to:
(a) incur capital expenditure which has been previously approved by the
Board and any other operational expenditure;
(b) appoint and terminate any buyers, suppliers, ancillaries,
franchisees and distributors;
(c) appoint, retrench and/or dismiss employees, consultants and contract
labour of the Company, subject to Clause 7.2 and other applicable
provisions of this Agreement, the applicable staff regulations, the
standing orders of the Company and applicable Law;
(d) make decisions regarding the marketing of the Company's products,
including fixing the price, margins, discounts and determining the
advertisement policy and budgets;
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(e) make operational decisions regarding the quality and product
constituents for the customers; and
(f) take such actions or execute such contracts on behalf of the Company
that are in the ordinary course of business of the Company.
4.8 REPORTING REQUIREMENTS
The SP shall ensure that the Company provides to the Government:
(i) annually within 3 (three) months of the end of a relevant
financial year an audited profit and loss account, balance
sheet and cash flow analysis for such financial year, together
with all reports and statements required to be annexed
thereto:
(ii) at least thirty (30) days prior to the commencement of a
financial year, the projections, financial budget and
operating plan for the next succeeding three financial years
and in respect of the first financial year of such succeeding
three years a detailed financial budget and operating plan
which shall be prepared on a quarterly basis;
(iii) within sixty (60) days of the end of each quarter period,
financial statements for such quarter showing profits or
losses before taxation, taxation on profits, profits or losses
attributable to shareholders, the balance at the end of the
period of share capital and reserves, and comparative figures
for the previous quarter and any other financial information
together with a commentary on the business of the Company;
(iv) such reports and such additional information prepared in the
usual form of the Company concerning any financial data
regarding operations, financial condition, business, affairs
or prospects of the Company.
ARTICLE 5
DEALING WITH SHARES
5.1 RESTRICTIONS ON TRANSFER OF SHARES
a) Except as expressly provided in this Agreement, or as may otherwise
be unanimously agreed, the SP shall not, for a period of 3 (three)
years from Closing, directly or indirectly, sell, transfer, assign,
pledge, charge, mortgage or in any other way dispose of or encumber
(any such, a "TRANSFER") any Purchase Shares or the legal or
beneficial ownership of Purchase Shares or any of its rights or
obligations under this Agreement, to any Person without first
complying with all of the provisions of this Agreement.
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(b) Subject to Clause 5.3(a), the SP may pledge, charge or mortgage any
Purchase Shares provided it gives a written notice to the
Government, at least 15 (fifteen)days prior to the creation of any
such pledge, charge or mortgage, specifying the identity of the
Person in whose favour the SP proposes to pledge, charge or mortgage
any Purchase Shares and the material terms and conditions concerning
pledge, charge or mortgage. Similarly, the Government may pledge,
charge or mortgage any equity shares of the Company held by it
provided it gives a written notice to the SP, at least 15 (fifteen)
days prior to the creation of any such pledge, charge or mortgage,
specifying the identity of the Person in whose favour the Government
proposes to pledge, charge or mortgage any equity shares of the
Company held by it and the material terms and conditions concerning
the creation of such pledge, charge or mortgage.
(c) The Parties agree that in the event that any share transfer
committee is constituted pursuant to Clause 4.1(e), no Transfer of
any Shares held by any Shareholder shall be approved by such share
transfer committee without an affirmative vote of the nominees of
both the SP and the Government on the share transfer committee.
Provided however, that the SP and the Government nominee on the
share transfer committee shall not withhold their approval to any
transfer of Share if such transfer is in accordance with the terms
of the Agreement.
5.2 NOTICE OF RESTRICTIONS
a) For a period of 3 (three) years from the Closing Date, the SP hereby
pledges the Purchase Shares and undertakes that it shall pledge any
additional Shares that it may acquire pursuant to this Agreement
prior to the expiry of 3 (years) (collectively referred to as the
"PLEDGED SHARES"), to the benefit of the Government as a continuing
security to secure its performance and adherence to the prohibition
on transfer of the Pledged Shares for 3 (three) years as provided in
sub-clause 5.1(a).
b) The Government hereby agrees that upon the expiry of 3 years from
the Closing Date, the Government shall issue a pledge closure
confirmation form in respect of all the Pledged Shares to the
Depository Participant of the Government.
c) Notwithstanding anything to the contrary in this Clause 5.2, the SP
shall be entitled to exercise any and all voting and other
consequential rights pertaining to the Pledged Shares in a manner
that is consistent with the terms of this Agreement.
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d) Notwithstanding what is provided hereinabove in sub-clause 5.2(a),
the SP may with the prior written approval of the Government, pledge
the Shares held by it to a financial institution, a scheduled bank
or a recognized lender as security for any loan or advances made by
such financial institution, scheduled bank or recognized lender,
provided however that the identity of the proposed pledgee is
disclosed to the Government and such pledge confirms that the pledge
shall be bound by the restrictions on transfer of Shares and the
contractual obligations and covenants as provided in this Agreement.
The Government agrees that it shall not unreasonably withhold its
consent to a proposal by the SP to pledge the Shares held by the SP
in accordance with this sub-clause.
e) For a period of 3 (three) years from Closing, all share certificates
with respect to the Shares held by the Government and in the event
that at any time prior to the expiry of 3 (three) years from
Closing, the SP holds any of its Shares in the form of physical
share certificates, then the share certificates for such of the SP's
Shares shall bear the following legend either as an endorsement or
on the face of such share certificate:
"THIS CERTIFICATE AND THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT IN ALL RESPECTS TO THE PROVISIONS OF THE SHAREHOLDERS
AGREEMENT AND THE SHARE PURCHASE AGREEMENT BOTH OF WHICH ARE DATED
MARCH 2, 2001, BY AND AMONG THE PRESIDENT OF INDIA, STERLITE
INDUSTRIES (INDIA) LTD AND BHARAT ALUMINIUM COMPANY LIMITED, COPIES
OF WHICH ARE ON FILE AT THE CORPORATE OFFICE OF THE COMPANY. SUCH
SHAREHOLDERS AGREEMENT, AMONG OTHER THINGS, IMPOSES VARIOUS
RESTRICTIONS ON THE TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION, GIFT, PLACEMENT IN TRUST (VOTING OR OTHERWISE), OR
OTHER ENCUMBRANCE OR DISPOSAL OF AN INTEREST IN, DIRECTLY OR
INDIRECTLY AND WHETHER OR NOT VOLUNTARILY, BY OPERATION OF LAW OR
OTHERWISE, THE COMPANY'S EQUITY SHARES, PAR VALUE Rs. 10 PER SHARE
(THE "EQUITY SHARES"), AND GRANTS TO CERTAIN SHAREHOLDERS OF THE
COMPANY CERTAIN OPTIONS TO PURCHASE AND SELL THE EQUITY SHARES." THE
ABOVE LEGEND SHALL BE VALID FOR A PERIOD COMMENCING FROM MARCH 2,
2001 TILL MARCH 1, 2004 AND SHALL BE DEEMED TO HAVE AUTOMATICALLY
LAPSED UPON THE EXPIRY OF THREE YEARS FROM THE DATE OF THE
ENDORSEMENT OR THE EXPIRY OF THE SHAREHOLDERS AGREEMENT, WHICHEVER
IS EARLIER.
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f) Upon the expiry of three (3) years from Closing, both the SP and the
Government shall have the right to submit the share certificates
bearing the legend to the Company and seek the substitution by a new
share certificate without the legend.
5.3 RIGHT OF FIRST REFUSAL
(a) Subject to Clause 5.1(a), if the Government desires to sell all or
any of the voting equity shares of the Company held by it, or if the
SP desires to sell all or any of the Purchase Shares, or any other
voting equity shares of the Company acquired pursuant to this
Agreement, the Government or the SP, as the case may be, (the
"OFFEROR") shall first offer (the "OFFER") to sell such voting
equity shares of the Company to the other Shareholder (the "OTHER
SHAREHOLDER"). The Offeror shall send a notice of the offer (the
"SALE NOTICE") to the Other Shareholder irrevocably offering to sell
the Offeror Shares, for cash, to the Other Shareholder.
(b) The Sale Notice shall clearly stipulate among other things, the
number of such voting equity shares of the Company that the Offeror
desires to sell (the "OFFER SHARES"), the price at which it wishes
to sell the Offer Shares (the "OFFER PRICE"), and details of any
willing third party buyer, if any.
(c) Upon the Sale Notice being given, the Other Shareholder shall have
the right, exercisable at its sole discretion, to purchase all, but
not less than all, of the Offer Shares.
(d) Within 30 Business Days of the Sale Notice (the "OFFER PERIOD"), the
Other Shareholder may give to the Offeror a notice in writing (an
"ACCEPTANCE NOTICE") accepting the offer contained in the Sale
Notice. If the Acceptance Notice is given by the Other Shareholder,
the transaction of purchase and sale shall be completed within 60
Business Days of the expiry of the Offer Period.
(e) If the Other Shareholder does not give Acceptance Notice in
accordance with the provisions of Clause 5.3(d), the rights of the
Other Shareholder, subject to the terms provided in this Clause 5.3,
to purchase the Offer Shares shall cease and the Offeror may sell
the Offer Shares to any Person or Persons within 60 Business Days
after the expiry of the Offer Period, for a price and on terms no
more favourable to such Persons than those set out in the Sale
Notice. If the Offer Shares are not sold within such 60 Business Day
period on such terms, the rights of the Other Shareholder pursuant
to this Clause 5.3 shall again take effect with respect to any sale
of voting equity shares of the Company held by the Offeror, and so
on from time to time. For the avoidance of doubt, if the Offeror
proposes to sell the Offer Shares at a price lower than the Offer
Price stipulated in the Sale Notice, the Offeror shall be bound to
offer the Offer Shares at such lower price to the Other
Page 16
Shareholder in accordance with Clause 5.3(a) and such lower price
shall then be deemed to be the 'Offer Price' for the purposes of
this Clause 5.3.
(f) In the event that the Offeror is the Government and the Other
Shareholder, being the SP, does not give the Acceptance Notice in
accordance with the provisions of Clause 5.3(d), the Government may
decide, in exercise of rights of an Offeror provided in Clause
5.3(e), to offer the Offer Shares to the public and the Government
shall promptly inform the SP of such decision to offer the Offer
Shares to the public.
(g) Within 15 (fifteen) days of the Government informing the SP as
provided under sub-clause 5.3(f), the SP shall have the option to
issue a notice (the "PUBLIC OFFER CALL NOTICE") to the Government
requiring the Government to sell such part of the Offer Shares to
the SP that would make the entire SP's shareholding in the Company
equal to the number of shares as are equal to one share more than
75% of the then entire issued and paid up equity share capital of
the Company ("RE-OFFERED SHARES").
(h) The Government shall be under an obligation to sell and the SP shall
be under an obligation to purchase the Re-offered Shares within 15
(fifteen) days of the date of Public Offer Call Notice at the Offer
Price.
(i) Upon the completion of the sale and purchase of the Re-offered
Shares or if the SP does not give the Public Offer Call Notice
within the period specified in sub-clause 5.3(g), the Government
shall be entitled to sell the Offer Shares or such part of the Offer
Shares as are remaining after the exercise of the Public Offer Call
Notice by the SP at a price not lower than the Offer Price.
(j) The SP and the Government shall cause such resolutions to be passed
at the shareholders meeting and Board meeting as may be required for
the listing of the Company's Shares at the stock exchange(s), under
applicable Law, including without limitation, Securities Exchange
Board of India guidelines and listing conditions. Further, the SP
and the Government shall cause the Company to comply with all
Securities Exchange Board of India guidelines, issue norms and
listing guidelines and all other conditions for listing under
applicable Law.
(k) Notwithstanding the provisions of Clause 5.3(e), the Other
Shareholder shall be entitled to require proof that the purchase and
sale of the Offer Shares was completed at a price and on terms no
more favourable than those that would have been applicable had the
Other Shareholder agreed to purchase the Offer Shares.
Page 17
(l) All Sale Notices, Acceptance Notices or any other notices given
under this Clause shall be given concurrently to the Company.
(m) Notwithstanding anything to the contrary in this Article 5, the
Government, shall at its sole discretion, have the option of selling
from its shares representing not more than 5% (five percent) of the
equity share capital existing as of date of this Agreement, to the
employees of the Company. In the event that the Government exercises
its option to sell part of its shares to the employees, the
employees shall be issued fresh share certificates for the shares
transferred to the employees, without the endorsement of the legend
provided in Clause 5.2(e). The Parties agree that, upon the
completion of transfer, the shares transferred to the employees
pursuant to this sub-clause (m) shall not be subject to any
restrictions in this Agreement, whether by way of a voting
arrangement or a right of first refusal.
5.4 TAG ALONG RIGHT
a) Notwithstanding anything to the contrary in Clause 5.3, but subject
to the restrictions in Clauses 5.1 and 5.3, in the event that the
Other Shareholder (as defined in Clause 5.3(a)) decides not to
exercise its right of first refusal pursuant to a Sale Notice (as
defined in Clause 5.3(a)), the Other Shareholder at any time before
the expiry of the Offer Period (as defined in Clause 5.3(d)), may
instead of exercising its right to purchase the Offer Shares (as
defined in Clause 5.3(b)), send a tag along notice (the "TAG ALONG
NOTICE") to the Offeror (as defined in Clause 5.3(a))requiring the
Offeror to ensure that the proposed third party purchaser of the
Offer Shares also purchases all or some of the Other Shareholders
equity shares in the Company at the same price and on the same terms
as the Offer Shares, Provided that if the Offeror is the Government
and the Government proposes to offer the Offer Shares to the public
in accordance with sub-clauses 5.3(f)-(h), the SP shall not have the
right to issue the Tag Along Notice and the provisions of this
Clause 5.4 shall not apply.
b) In the event that the Other Shareholder delivers a Tag Along Notice
to the Offeror, the Offeror shall ensure that along with the Offer
Shares, the proposed third party purchaser also acquires the shares
specified in the Tag Along Notice for the same consideration and
upon the same terms and conditions as applicable to the Offer
Shares.
c) In the event that the proposed third party purchaser is unwilling or
unable to acquire all of the Offer Shares and the Other
Shareholder's equity shares mentioned in the Tag Along Notice, upon
such terms then the Offeror may elect either to cancel such proposed
transfer or to allocate the maximum number of equity shares of the
Company which the proposed third party purchaser is
Page 18
willing to purchase among the Sale Shares and the shares mentioned
in the Tag Along Notice pro-rata in the ratio of equity shareholding
in the Company at such time of the Offeror and the Other Shareholder
and to complete such transfer on such terms.
d) Notwithstanding anything to the contrary in this Agreement, the
Offeror shall not be entitled to sell or transfer any of the Offer
Shares to any proposed purchaser / transferee unless the proposed
purchaser / transferee simultaneously purchases and pays for the
required number of equity shares mentioned in the Tag Along Notice
in accordance with the provisions of this Clause 5.4.
5.5 INSOLVENCY OF A SHAREHOLDER
(a) If an Event of Bankruptcy occurs in relation to the SP, the SP shall
give notice of such Event of Bankruptcy ("INSOLVENCY OFFER NOTICE")
to the Government within 15 Business Days of such Event of
Bankruptcy, offering to sell all, but not less than all, of the
voting equity shares of the Company beneficially then owned by the
SP (the "SP's SHARES") to the Government or its nominee at a price
determined pursuant to Clause 6.1.
(b) Within 60 Business Days of the purchase price being determined in
accordance with Clause 6.1 (for the purposes of this Clause the
"OFFER PERIOD") the Government may give to the SP, with a copy to
the Company, a notice in writing exercising its right to purchase
the SP's Shares under this Clause 5.5 (an "INSOLVENCY ACCEPTANCE
NOTICE"). If the Insolvency Acceptance Notice is given by the
Government, the transaction of purchase and sale shall be completed
within 60 Business Days of the expiry of the Offer Period.
(c) Upon the completion of the purchase of the SP shares by the
Government pursuant to this Clause 5.5, the Government shall be
constituted as successors in interest of the SP to the extent of the
equity shares of the Company held by the SP and the Government shall
be entitled to succeed to, and be transmitted as the successor
Shareholders on the register of members of the Company.
5.6 PERMITTED TRANSFERS
(a) Any Securities held by the SP may be Transferred to a Person who is
an Affiliate of the SP provided that, in connection with any such
Transfer (i) the transferee shall, in writing, assume all rights and
obligations of the transferor under this Agreement, and (ii)
effective provision is made whereby the transferee and the
transferor are bound, prior to the transferee ceasing to be an
Affiliate of SP to effect the Transfer back to the SP, of all (but
not less than all) such Securities held by the transferee.
Page 19
(b) Notwithstanding the completion of any Transfer of Securities by the
SP to an Affiliate pursuant to this Clause 5.6, the SP shall
continue to be bound by all the obligations under this Agreement as
the principal obligator.
5.7 CONSEQUENCES OF BREACH BY A SHAREHOLDER
(a) If either of the SP or the Government commits any breach or default
of the terms of this Agreement (the "DEFAULTING PARTY") which, if
capable of being remedied, is not remedied within 30 days of receipt
of notice of such breach, the other Party (the "NON-DEFAULTING
PARTY") shall have the right, exercisable at its sole discretion, at
any time within 90 days of the day it became aware of such breach or
default, to give notice (such notice being referred to in this
Clause 5.7 as the "NOTICE") to the Defaulting Party containing an
offer by the Non-Defaulting Party, at the option of the
Non-Defaulting Party to either:
(i) sell all or any of the voting equity shares of the Company
held by the Non- Defaulting Party to the Defaulting Party
(such offer being referred to in this Clause 5.7 as, an "Offer
to Sell") at a price that is equivalent to 125% of the price
of such equity shares determined in accordance with Clause
6.1, Provided however, that in the event that the Defaulting
Party is the SP and the event of breach committed by the SP is
under the terms of sub-clauses 7.2(e) and (f), Clause 4.5 read
with item 20 of Schedule 4.5 or this Article 5, the price at
which the Government (the Non-Defaulting Party) may make the
Offer to Sell shall be 150% of the price of such equity shares
determined in accordance with Clause 6.1; or
(ii) purchase, directly or indirectly, through a designated
nominee, all or any of the voting equity shares of the Company
held by the Defaulting Party (such offer being referred to in
this Clause 5.7 as, an "Offer to Purchase") at a price that is
equivalent to 75% of the price of such equity shares
determined in accordance with Clause 6.1, Provided however,
that in the event that the Defaulting Party is the SP and the
event of breach committed by the SP is under the terms of
sub-clauses 7.2(e) and (f), Clause 4.5 read with item 20 of
Schedule 4.5 or this Article 5, the price at which the
Government (the Non-Defaulting Party) may make the Offer to
Purchase shall be 50% of the price of such equity shares
determined in accordance with Clause 6.1.
(b) Within 30 Business Days of the Notice being given containing the
Offer to Sell or the Offer to Purchase, as the case may be, the
Defaulting Party shall complete the transaction of the purchase and
sale.
Page 20
(c) The Defaulting Party shall be liable for all costs and expenses
(including reasonable legal fees) including, but not limited to,
those that the Non-Defaulting Party or its nominee may incur to
complete the transaction of sale and purchase pursuant to this
Clause 5.7 and comply with the applicable rules and regulations of
the Securities and Exchange Board of India, if applicable.
5.8 CALL OPTION
a) The Parties hereby agree that upon the expiry of the third
anniversary of the Closing Date, and at any time thereafter, the SP
shall have the option to issue a notice ("CALL NOTICE") to the
Government, thereby requiring the Government to sell to the SP
within a period of 60 (sixty) days from the date of receipt of the
Call Notice (the "CALL PERIOD"), all but not less than all the
voting equity shares in the Company then held by the Government,
(the "CALLED SHARES") and the Government in that event shall be
under mandatory obligation to sell the Called Shares as aforesaid.
The price for the sale and purchase of the Called Shares pursuant to
this Clause shall be the higher of:
i) Fair Value of the Called Shares; or
ii) The unit sale price (as provided in Clause 2.1 of the Share
Purchase Agreement at which the SP has purchased the Purchase
Shares pursuant to the Share Purchase Agreement) together with
interest at the rate of 14% per annum compounded with half
yearly rests and calculated from the Closing Date after giving
credit for the dividend received by the Government as a
Shareholder of the Company during the period from the Closing
till the date of the completion of the sale and purchase of
the Called Shares.
b) The Parties shall cause the Fair Value of the Called Shares to be
determined within 30 days of the date of receipt of the Call Notice.
c) Upon receiving a Call Notice from the SP, the Government shall not
be entitled to sell, transfer, assign, pledge, charge, mortgage or
in any other way dispose of or encumber its Shares during the Call
Period. If the purchase, pursuant to the Call Notice is not
completed by the SP, the Government shall be relieved of its
obligations to sell the Called Shares specified in Clause 5.8
herein. For the avoidance of doubt, other than the right of first
refusal provided in Clause 5.3 and the tag along rights provided in
Clause 5.4, there shall be no restriction on the right of the
Government to Transfer any or all of its Shares till such time that
the Call Notice is received by the Government.
Page 21
d) Upon the issuance of the Call Notice by the SP, the SP shall be
under an obligation to complete the purchase of the Called Shares
within the Call Period.
e) The sale and purchase of the Called Shares pursuant to this Clause
5.8 shall be subject to the procurement of all Approvals.
ARTICLE 6
ARRANGEMENTS REGARDING TRANSFER
6.1 VALUATION
The purchase price payable for any voting equity shares of the Company to
be transferred hereunder at a price determined pursuant to this Clause 6.1
shall be equal to the Fair Value determined, as at the date of the event
which gives the right of purchase or sale (the "VALUATION DATE"), in
accordance with the principles of valuation set forth in Schedule 6.1.
6.2 CLOSING
a) Save and except the transfer of the Purchase Shares by the
Government to the SP pursuant to the Share Purchase Agreement, any
transaction relating to the sale and purchase of the equity shares
of the Company between the Parties shall take into consideration the
matters specified in Schedule 6.2.
(b) In the event of any transfer of any loan made by a Shareholder to
the Company in accordance with the terms of this Agreement, the
Company shall, upon the notes, debentures or other evidence of
indebtedness held by the transferor being delivered to the Company
for cancellation, issue to the transferee replacement notes,
debentures or other evidence of indebtedness, on the same terms and
in the same form as held by the transferor, in the principal amount
of such shareholder loans transferred and assigned to the
transferee.
Page 22
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Shareholders that:
(a) The authorized capital of the Company consists of 50,00,00,000/-
voting equity shares of Rs. 10 each and the total paid-up share
capital of the Company consists of 22,06,24,500 voting equity shares
of Rs. 10 each.
(b) No Person has any agreement or option or right capable of becoming
an agreement for the purchase, subscription or issue of any shares
of the Company, save and except as provided for in this Agreement
and the Share Purchase Agreement.
7.2 SP'S REPRESENTATIONS, WARRANTIES AND COVENANTS
The SP represents and warrants to and covenants with each of the
Government and the Company that:
(a) it has been duly incorporated or created and is validly subsisting
and in good standing under the laws of the jurisdiction indicated in
the preamble to this Agreement;
(b) it has the corporate power and authority to enter into and perform
its obligations under this Agreement;
(c) this Agreement has been duly authorised, executed and delivered by
it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms;
(d) it is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, instrument, charter or by-law
provision, statute, regulation, judgment, decree or law which would
be violated, contravened, breached by or under which default would
occur or under which any payment or repayment would be accelerated
as a result of the execution and delivery of this Agreement or the
consummation of any of the transactions provided for in this
Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, it shall
not retrench any part of the labour force of the Company for a
period of one (1) year from the Closing Date other than any
dismissal or termination of employees of the Company from their
employment in accordance with
Page 23
the applicable staff regulations and standing orders of the Company
or applicable Law; and
(f) Notwithstanding anything to the contrary in this Agreement, but
subject to sub-clause (e) above, any restructuring of the labour
force of the Company shall be implemented in the manner recommended
by the Board and in accordance with all applicable laws.
(g) Notwithstanding anything to the contrary in this Agreement, but
subject to sub-clause (e) above, in the event of any reduction of
the strength of the Company's employees the SP shall ensure that the
Company offers its employees, an option to voluntarily retire on
terms that are not, in any manner, less favourable than the
voluntary retirement scheme offered by the Company which is referred
to in Schedule 7.4 of the Share Purchase Agreement: and
(h) It shall vote all the voting equity shares of the Company, directly
or indirectly, held by it to ensure that all provisions of this
Agreement, to the extent required, are incorporated in the Company's
articles of association.
7.3 GOVERNMENT'S REPRESENTATIONS AND WARRANTIES
The Government represents and warrants to each of the Company and the SP
that:
(a) it has the power and authority to enter into and perform its
obligations under this Agreement;
(b) this Agreement has been duly authorised, executed and delivered by
it and constitutes a valid and binding obligation enforceable
against it in accordance with its terms;
(c) except as disclosed in the Disclosed Information or the Share
Purchase Agreement, to the Knowledge of the Government, the
Government is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, instrument, charter or by-law
provision, statute, regulation , judgment, decree or law which would
be violated, contravened, breached by or under which default would
occur or under which any payment or repayment would be accelerated
as a result of the execution and delivery of this Agreement or the
consummation or any of the transactions provided for in this
Agreement; and
(d) it shall vote all the voting equity shares of the Company held by it
to ensure that all provisions of this Agreement, to the extent
required, are incorporated in the Company's articles of association.
Page 24
7.4 SURVIVAL OF REPRESENTATIONS
All of the representations and warranties made in this Agreement shall
survive and continue to be in effect for a period of 3 (three) years from
the date of this Agreement and shall be deemed to be continuing in full
force and effect.
ARTICLE 8
INDEMNIFICATION AND CONFIDENTIALITY
8.1 INDEMNIFICATION
Each Shareholder agrees to indemnify, defend and hold harmless each of the
Company, the other Shareholder, and their respective lawful successors and
assigns from and against any and all losses, liabilities, claims, damages,
costs and expenses including reasonable legal fees and disbursements in
connection therewith and interest chargeable thereon (collectively,
"CLAIMS") asserted against or incurred by the Company or such other
Shareholder which arise out of; results from, or may be payable by virtue
of any breach of any representation, warranty, covenant or agreement made
or obligation required to be performed by the indemnifying Shareholder
pursuant to this Agreement; provided, however, that in no event shall the
indemnifying Shareholder be liable, wherein in contract, tort,
misrepresentation, warranty, negligence, strict liability or otherwise,
for any special, indirect, incidental or consequential damages arising out
of or in connection with this Agreement, or any performance,
non-performance or breach of any provision hereof.
8.2 CONFIDENTIALITY
The SP agrees that it shall not, at any time or under any circumstances,
without the prior written consent of the Company and the Government,
directly or indirectly communicate or disclose to any Person (other than
an Affiliate of SP) any knowledge or information howsoever acquired by
them relating to the customers, products, technology, trade secrets,
systems, operations or other confidential information regarding the
property, business and affairs of the Company or any of its subsidiaries
including, but not limited to, any foreign collaboration agreements and
technical collaboration agreements entered into by the Company or any of
its subsidiaries. The SP further agrees that it shall not utilise, or make
available to any Person any such knowledge or information, in connection
with the transfer or proposed transfer of any of the Securities, Provided
however that the confidentiality obligation under this Clause 8.2 shall be
subject to the following exceptions:
Page 25
a) disclosure to the employees and auditors requiring the information for the
purposes of this Agreement subject to the execution of a confidentiality
agreement by them; or
b) legal advisors and professional consultants subject to the execution of a
confidentiality agreement by them; or
c) if the information is, prior to the execution of this Agreement, lawfully
in the possession of the SP through sources other than the party who
supplied the information: or
d) if required by Law; or
e) if the information is or becomes generally and publicly available, other
than due to reason of breach of this Agreement.
ARTICLE 9
GOOD FAITH
9.1 The SP confirms that it has, prior to the Closing, disclosed particulars
to the Government of any activities or business that it is engaged in that
are in competition with the business of the Company.
9.2 In the event that the SP, its Affiliates or its nominees at any time after
Closing, decides to undertake any activities or businesses that may be in
competition with the then existing business of the Company, the SP shall
be under an obligation to disclose such activity or business to the
Government.
9.3 The SP agrees that, in the event that, at any time, the SP, its Affiliates
or its nominees is engaged in any activities or businesses that may be or
is in competition with the Company's business, both existing or future,
then the SP its Affiliates or its nominees shall always act in good faith
and in the interests of the Company.
ARTICLE 10
MANAGEMENT DEADLOCK
10.1 In the event that the Government withholds its consent for a matter
specified in Schedule 4.5 in a Board Meeting and the same matter is placed
before the Board in the next Board Meeting or a Board Meeting held within
three (3) months of the first Board Meeting at which the consent was
withheld by the Government,
Page 26
the Government may at is discretion, either:
a) give its consent to such matter at such succeeding Board Meeting:
b) determine that a deadlock ("DEADLOCK") has arisen and issue a
written deadlock notice (the "DEADLOCK NOTICE") to the SP.
10.2 Within fourteen (14) days after receipt of a Deadlock Notice by the SP,
the Parties shall refer the Deadlock Notice to the senior representatives
of the SP and the Government for resolution of the Deadlock.
10.3 If the senior representatives of the Parties fail to resolve the Deadlock
within sixty (60) days of the reference of the Deadlock Notice, or such
extended period as may be agreed in writing between the Parties, the
Parties shall proceed in accordance with Article 10.4.
10.4 In the event that the matter of Deadlock, is not resolved in terms of
Article 10.3, the Government may serve notice on the SP requiring the SP
to buy all the Shares held by the Government at the higher of their Fair
Value or the unit sale price (as provided in Clause 2.1 of the Share
Purchase Agreement at which the SP has purchased the Purchase Shares
pursuant to the Share Purchase Agreement) together with interest at the
rate of 14% per annum compounded with half yearly rests and calculated
from the Closing Date after giving credit for the dividend received by the
Government as a Shareholder of the Company during the period from the
Closing till the date of the completion of the sale and purchase of the
said shares.
10.5 In the event that the Government serves a notice on the SP pursuant to
Clause 10.4, the SP shall complete the purchase of the Shares held by the
Government within sixty (60) days of receipt of such notice.
ARTICLE 11
MISCELLANEOUS
11.1 ARBITRATION
a) Any controversy or dispute which arises between the Parties to this
Agreement concerning its construction or application, or the rights,
duties or obligations of any Party hereunder, shall be referred to
arbitration subject to the procedures set out in Schedule 11.1 to
this Agreement.
b) Notwithstanding anything to the contrary in sub-clause hereinabove,
the Parties agree that any valuation pursuant to Clause 6.1 is an
expert opinion and shall be final and binding on the Parties and
shall not be the subject matter of dispute between the Parties.
Page 27
11.2 APPLICATION OF THIS AGREEMENT
The terms of this Agreement shall apply mutatis mutandis to any shares:
(a) resulting from any conversion, reclassification, redesignation,
subdivision or consolidation or other change of the voting equity
shares of the Company held by the Shareholders; and
(b) of the Company or any successor body corporate which maybe received
by the Shareholders as a result of any merger, amalgamation,
arrangement or other reorganisation of or including the Company:
(c) and prior to any such action being taken the Parties shall give a
consideration to any changes which may be required to this Agreement
in order to give effect to the intent of this Clause.
11.3 FURTHER ASSURANCES
The Parties shall, with reasonable diligence, do all such things and
provide all such reasonable assurances as may be required to consummate
the transactions contemplated by this Agreement, and each Party shall
provide such further documents or instruments required by any other Party
as may be reasonably necessary or desirable to effect the purpose of this
Agreement and carry out its provisions.
11.4 BENEFIT OF THE AGREEMENT
This Agreement shall ensure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and permitted
assigns of the Parties hereto. Irrespective of whether or not the
memorandum and/or articles of association of the Company fully
incorporate the provisions hereof or any of them, the Government and the
SP's rights and obligations shall be governed by this Agreement which
shall prevail in the event of any ambiguity or inconsistency between the
articles of association of the Company and the provisions of this
Agreement.
11.5 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties to
this Agreement with respect to the subject matter of this Agreement and
cancels and supersedes any prior understandings and agreements between the
Parties with respect to such subject matter. There are no representations,
warranties, terms, conditions, undertakings or collateral agreements,
express, implied or statutory between the Parties other
Page 28
than those expressly set forth in this Agreement.
11.6 AMENDMENTS AND WAIVERS
No amendment to this Agreement shall be valid or binding unless set forth
in writing and duly executed by all of the Parties to this Agreement. To
the extent any such modification or amendment requires a corresponding
modification or amendment to the memorandum and/or the articles of
association, the Parties shall use their best efforts in good faith to
cause all such modifications or amendments to the memorandum and/or the
articles of association of the Company. No waiver of any breach of any
provision of this Agreement shall be effective or binding unless made in
writing and signed by the Party purporting to give the same and, unless
otherwise provided in the written waiver, shall be limited to the specific
breach waived.
11.7 ASSIGNMENT
Except as may be expressly provided in this Agreement, none of the Parties
to this Agreement may assign its rights or obligations under this
Agreement without the prior written consent of all of the other Parties.
11.8 TERMINATION
This Agreement shall terminate upon:
(a) the written agreement of all of the Company, SP and the Government;
or
(b) the dissolution or bankruptcy of the Company; or
(c) either Party becoming the beneficial owner of more than 75% of the
voting shares of the Company; or
(d) either of the Parties directly or indirectly ceasing to hold the
legal and beneficial ownership of at least 25.01% of the outstanding
and issued voting equity share capital of the Company,
11.9 SURVIVAL
a) Notwithstanding anything to the contrary in this Agreement, any
termination pursuant to Clause 11.8 will not affect the
effectiveness of Articles 1, 6, 8 and 11 and, to the extent that the
termination is caused pursuant to Clause 11.8 (c) & (d), the
effectiveness of Clause 3.3, 5.3, 5.4, 5.5, 5.6 and 5.7, of this
Agreement and the Parties, obligations stated therein.
Page 29
b) No termination of this Agreement or any agreement related hereto
shall release any Party from any liability to any other Party which
at the time of such termination has already accrued, nor affect in
any way the survival of any right of obligation of any Party which
is expressly stated elsewhere in this Agreement or in any agreement
related hereto to survive the expiration or termination hereof.
11.10 SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part of such provision and the
remaining part of such provision and all other provisions of this
Agreement shall continue to be in full force and effect.
11.11 NOTICES
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (referred to in this
Clause as a "NOTICE") to any Party shall be sufficiently given if
delivered personally, or if sent by prepaid registered mail or if
transmitted by fax or other form of recorded communication tested prior to
transmission to such Party:
(a) in the case of a notice to the Government, at:
Ministry of Mines and Minerals
Department of Mines
Xxxxxxx Xxxxxx
Xxx Xxxxx 000 000, Xxxxx
Attention: Joint Secretary
Fax: 000 000 0000
(b) in the case of a notice to the SP, at:
Sterlite Industries (India) Ltd
5th Floor, Xxxxxxx Xxxxx
Chatrapati Shivaji Marg, Apollo Bunder
Mumbai, India
Attention: Company Secretary
Fax: 000 000 0000
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(c) in case of a notice to the Company, at:
Bharat Aluminium Company Limited
Aluminium Sadan, Scope Complex
Lodi Road, New Delhi, India
Attention: Chairman/ Company Secretary
Fax: 000 000 0000
Or at such other address as the Party to whom such writing is to be given
shall have last notified to the Party giving the same in the manner
provided in this Clause. Any notice personally delivered to the party to
whom it is addressed as provided in this Clause shall be deemed to have
been given and received on the day it is so delivered at such address,
provided that if such day is not a Business Day then the notice shall be
deemed to have been given and received on the manner provided for in
Clause 1.2 (d). Any notice sent by prepaid registered mail shall be deemed
to have been given and received on the fifth Business Day next following
the date of its mailing. Any notice transmitted by fax or other form of
recorded communication shall be deemed given and received on the first
Business Day after its transmission.
11.12 NON-SOVEREIGN ACT
The execution, delivery and performance by the Government of this
Agreement and any other related agreements to which it is a party
constitutes commercial acts done and performed for commercial purposes and
do not constitute sovereign acts and the Government, saving and excepting
the assets and properties concerning the military of the Government or any
diplomatic consular office, waives any and all rights of immunity that it
or any of its assets may have or may acquire in future against the
institution of any legal or arbitral proceedings and the enforcement of
any judgment, settlement or arbitral award.
11.13 GOVERNING LAW
This Agreement shall be governed and interpreted by and construed in
accordance with the laws of India, without giving effect to the principles
of conflict of laws thereunder.
11.14 COUNTERPARTS
This Agreement may be executed by the Parties in separate counterparts
each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, EACH OF THE PARTIES have caused this Agreement to be duly
executed by their duly authorised representatives on the date and year first
hereinabove written.
Witnessed by: /s/ R. Srinivaan For and on behalf of
----------------------- GOVERNMENT OF INDIA
Signed By: /s/ X. Xxxxxxx
Name: R. SRINIVAAN -----------------------------
Address: 21A, JANPATH, Title: J.S., Ministry of Mines
N. DELHI-110001
Witnessed by: /s/ Xxxxxxx X. Xxxxxx For and on behalf of Bharat
----------------------- Aluminium Company Limited
Signed By: /s/ S. C. Tripathi
Name: XX. XXXXXXX X. XXXXXX -----------------------------
Address: 3, LSC, Xxxxxxx Enclave, Title: CMD, BALCO
N. DELHI-110048
Witnessed by: /s/ O. P. Xxxxxxx For and on behalf of
----------------------- Sterlite Industries (India) Ltd
Signed By: /s/ Xxxxx Xxxx
Name: O. P. XXXXXXX -----------------------------
Address: B-1, DEFENCE COLONY, Title: Director (Finance)
NEW DELHI
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SCHEDULE 4.5
MATTERS REQUIRING SPECIAL CONSENT
1. Alter the provisions of the articles of association of the Company.
2. Change the place of the registered office from one State to another.
3. Commence any new line of business.
4. Change the name of the Company.
5. Issue further Shares without pre-emptive rights to members or convert loans
or debentures into Shares and the terms and conditions of such issue.
6. Determine that any portion of the share capital not already called up shall
not be called up except in the event of, and for the purpose of, winding up
the Company.
7. Reduction of the share capital.
8. Approval of variation of rights of special classes of Shares.
9. Keep registers and returns at any other place than within city, town or
village in which the registered office is situated.
10. Authorise the payment of interest on the paid-up amount of share capital
raised for the purpose of defraying the expenses of construction of any
work or building or the provisions of any plant that cannot be made
profitable for a lengthy period.
11. Consent to a Director or his relative or partner or firm or private company
holding an office or place of profit, except that of managing director,
manager, banker, or trustee for debenture-holders of the Company.
12. Appoint sole selling or buying or purchasing agent.
13. Make loans or provide guarantees or security to other companies under the
same management.
14. Apply to a Court to wind-up the Company.
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15. Wind-up the Company voluntarily.
16. Bind the Company by a scheme of arrangement made under Section 517 of the
Act.
17. For various other matters pertaining to the winding up of the company under
Sections 433(a), 494(1)(b), 507.512(l), 546(l)(b), 550(l)(b)of the Act.
18. Any buy-back by the Company of Shares under the provisions of Section 77A
of the Act.
19. The granting of any security or creation of any Liens on the assets of the
Company or guaranteeing the debts of any Person which in aggregate exceeds
100% of the free reserves and paid up capital of the Company but excluding
those necessary to secure operating lines of credit/working capital
requirements of the Company with institutional investors, multilateral
agencies, scheduled banks and financial institutions.
20. Any one or a series of transactions which causes a sale, lease, exchange or
disposition of property or assets of the Company or its subsidiary having
an aggregate value exceeding 20% of the total value of the net fixed assets
of the Company as specified in the Audited Financial Statement.
21. The making, directly or indirectly, of loans or advances in excess of
Rs. 20 Crores to any Person except in the ordinary course of business.
22. Vesting or delegation of such powers to the Managing Director/Chairman cum
Managing Director or the Chief Executive Officer or officer of equivalent
position in the Company that are in excess of the powers and authority of
the Managing Director as specified in Clause 4.7.
23. Any commitment or agreement to do or delegation of any powers to any person
to do, any of the foregoing.
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SCHEDULE 6.1
PRINCIPLES OF VALUATION
(a) VALUATION PROCEDURE
Upon the provisions of this Schedule becoming applicable (but subject to
sub-clause (b)), the non-defaulting party /selling Party (if not a
Defaulting Party) shall, unless otherwise agreed to between the Parties,
appoint an independent valuer of international repute from among the
entities mentioned in sub-Clause (c) of this Schedule to determine the
Fair Value of the relevant voting equity shares of the Company as at the
Valuation Date.
In determining the Fair Value of the relevant voting equity shares of the
Company, the independent valuer shall take into account various factors,
including, but not limited to the following:
i) Discounted cash flow principles;
ii) Commonly used valuation multiples of comparable transactions;
iii) if the Company is listed, the current price of the voting equity
shares of the Company as quoted on the stock exchange(s) where they
are primarily traded;
iv) the Securities and Exchange Board of India's guidelines and principles
of valuation, if applicable;
v) whether such voting equity shares of the Company which are subject to
the transaction of purchase and sale constitute a minority block or a
majority block of all of the issued and outstanding voting equity
shares of the Company;
vi) whether such equity shares have any contractual rights with respect to
the Company attached to them and appropriate discount or premium shall
be applied to its valuation on the basis thereof;
vii) discounting principles, if the selling party is insolvent, for
assuming any restriction and obligations attached to the shares.
The valuation arrived at by the independent valuer is, made as an expert
and not as an umpire or arbitrator, shall be final and binding on the
parties and no appeal shall lie from such valuation.
(b) COSTS OF VALUATION
All cost and expenses relating to the determination of the Fair Value of
any voting equity shares of the Company pursuant to this Schedule shall be,
unless otherwise expressly provided, shared equally among the vendors and
purchasers in the subject transaction. Provided that if the sale or
purchase of Shares under this Agreement is pursuant to a breach by either
Party, then the Defaulting Party shall bear the entire cost and expenses
relating to the determination of the Fair Value of any voting equity shares
of the Company
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pursuant to this Schedule.
(c) Each Party agrees that the following entities and their successor entities
are acceptable to the Party as the independent valuer to be appointed
pursuant to sub Clause (a) of this Schedule 6.1.
1. XXXXXX XXXXXXXX & ASSOCIATES
2. KPMG PEAT MARWICK
3. ERNST & YOUNG
4. PRICE WATERHOUSE COOPERS
5. X. X. XXXXXXXX & CO
d) The Parties agree that the list of entities in sub-Clause (c) of this
Schedule 6.1, shall be subject to such additions and modifications as the
Parties may mutually decide from time to time.
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SCHEDULE 6.2
MECHANISM RELATING TO SALE AND PURCHASE BETWEEN THE PARTIES
OF SHARES OF THE COMPANY IN THE FUTURE.
a) The transfer and assignment Securities proposed to be transferred (the
"TRANSFER SECURITIES") shall be completed at the Company's registered
office, on the date specified for closing.
b) If the Shares are held in physical form and are proposed to be transferred
in physical form, the transferor(s) shall transfer and assign to the
transferee(s) good title to the Transfer Securities being transferred and
assigned free and clear of all Liens and shall deliver the following
documents to the transferee
i) Share certificates or other documents of title evidencing ownership of
the Transfer Securities;
ii) Duly endorsed blank transfer deeds for the Transfer Securities;
iii) Resignations and releases of all or some of the nominees of the
transferor on the Board and all such resignations to be effective no
later than the time of delivery;
iv) Duly executed powers of attorney as may be reasonably required to
effect the transfer of shares.
c) Simultaneously, with the delivery of documents specified in sub-clause b),
the transferee shall deliver to the transferor a demand draft drawn upon a
bank acceptable to the transferor in full payment of the purchase price
payable for the Transfer Securities and execute the appropriate instrument
of transfer delivered to it by the transferor and submit it to the
Company's company secretary for due and prompt filing and recording.
d) Upon the receipt of the appropriate instruments of transfer the Company
shall accordingly effect the recording of the transfer of the Securities in
its books and records in accordance with all applicable laws.
e) If the Shares are held in dematerialized form and are proposed to be
transferred in a dematerialized form, then any transfer of such Shares
shall be in the manner prescribed by the bye-laws and regulations of the
Depository.
f) If, at the time of closing, the transferor fails to complete the
transaction of purchase and sale, the transferee (if not then in default
under this Agreement) shall have the right, without prejudice to any other
rights which it may have upon payment of that part of the purchase price
payable to the transferor at the time of closing to the credit of the
transferor in the main branch of the Company's bank, to execute and
deliver, on
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behalf of and in the name of the transferor, such deeds, transfers, share
certificates, resignations or other documents that may be necessary to
complete the subject transaction.
g) In an appropriate case, where the transferee is not bound by the terms of
this Agreement (sale to employee), a fresh certificate shall be issued
after deletion of the legend.
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SCHEDULE 11.1
ARBITRATION PROCEDURE
(a) DISPUTE RESOLUTION
Any and all claims, disputes, questions or controversies involving the
Parties or any two or more of them and arising out of or in connection with
this Agreement, or the execution, interpretation, validity, performance,
breach or termination hereof (including, without limitation, the provisions
of this Schedule 11.1(collectively, "DISPUTES") which cannot be finally
resolved by such Parties within sixty (60) calendar days of the arising of
a Dispute by amicable negotiation and conciliation shall first be submitted
for settlement by informal mediation to a panel consisting of one nominee
of each of such Party, as applicable. If any such panel, negotiating in
good faith, is unable to resolve and settle the Dispute within sixty (60)
calendar days after the dispute is first submitted to it, then any Party
shall be entitled to cause the Dispute to be submitted for arbitration
pursuant to the terms of Clause (b) of this Schedule 11.1.
(b) ARBITRATION
Any Dispute which is not settled after an attempt by the parties to the
Dispute at amicable negotiations and conciliation under Clause (a) of this
Schedule 11.1 shall be resolved by final and binding arbitration held in
New Delhi in accordance with the provision of Indian Arbitration and
Conciliation Act, 1996, as amended (the "ARBITRATION ACT").
The Disputes shall be referred to a sole arbitrator if the Parties agree
upon a sole arbitrator and failing such agreement, to three arbitrators,
one to be appointed by the Government, the other to be appointed by the SP
and the third to be jointly appointed by the two arbitrators appointed by
the Parties.
In connection with the arbitration proceedings, the parties to the Dispute
hereby agree to cooperate in good faith with each other and the arbitral
tribunal and to use their respective best efforts to respond promptly to
any reasonable discovery demand made by such party and the arbitral
tribunal.
Except as otherwise required by law or any applicable stock exchange rules
and regulations, the arbitral proceedings and the arbitral award (the
"AWARD") shall not be made public without the joint consent of the parties
to the Dispute and each such party shall maintain the confidentiality of
such proceedings or the Award, unless otherwise permitted by the other such
party in writing. The costs of arbitration shall be borne equally by the
parties to the Dispute unless otherwise awarded by the arbitral tribunal.
Unless the Award provides for non-monetary remedies, any such Award shall
be made and shall be promptly payable, net of any tax or other deduction.
Page 39
All notices and other communications by one party to the Dispute to the
other or by the arbitral tribunal to any of such parties in connection with
the arbitration hereunder shall be in accordance with the provisions of
Clause 11.11 of the Agreement.
Each of the Parties expressly understands and agrees that the Award shall
be the sole, exclusive, final and binding remedy between them regarding any
and all Disputes presented to the arbitral tribunal. Application shall be
made to any court with jurisdiction over the party (or its assets) against
whom the Award is rendered for a judicial acceptance of the Award and an
order of enforcement.
(c) CONTINUING OBLIGATIONS
Neither the existence of any Dispute nor the fact that any arbitration is
pending hereunder shall relieve any of the Parties of their respective
obligations under this Agreement.
The pendency of dispute in any arbitration proceeding shall not affect the
performance of the obligations under this Agreement.
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