Agreement for the Sale of Shares - CricInfo Ltd., Indigo Holdings Ltd. and Satyam Infoway Ltd.
AGREEMENT FOR THE SALE OF SHARES IN CRICINFO LIMITED
DATED: 5 April 2000
PARTIES:
(1) INDIGO HOLDINGS LIMITED whose registered office address is 16 New Street,
St Peter Port, Guernsey, Channel Islands ("Indigo"); and
(2) SATYAM INFOWAY LIMITED whose registered office address is at Maansrovar
Towers, 271-A, Anna Salai, Teynampet, Chennai 600018, India ("Satyam").
BACKGROUND:
(A) CricInfo Limited ("the Company") is a private limited company incorporated
in England and Wales on 12 June 1996 under the Companies Acts 1985 to 1989
(registered number 3215055) and has an authorised share capital of
GB(Pounds)1,000 divided into 1,000 shares of GB(Pounds)1 each 100 of which
are issued fully paid or credited as fully paid.
(B) Indigo is the registered holder and beneficial owner of 25 shares in the
capital of the Company.
(C) Indigo wishes to sell, and Satyam wishes to buy, 25 shares amounting to 25%
of the current issued share capital of the Company for a total
consideration of U.S. $28,800,000 on the terms of, and subject to the
conditions set out in this Agreement.
EFFECT OF THIS AGREEMENT:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, where the context admits -
1.1.1 words importing the singular include the plural and vice versa
and words implying one gender shall be treated as implying any
gender;
1.1.2 the expression "person" includes any body of persons corporate;
1.1.3 the headings to the Clauses do not affect their interpretation;
1.1.4 references to the parties are references to the parties to this
Agreement and references to Clauses are references to the clauses
of this Agreement;
1.1.5 words and expression defined in the Companies Act 1985 bear the
same meanings in this Agreement unless the context otherwise
requires.
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1.2 In this Agreement, where the context allows, the following
specific words and expressions have the following meanings:
1.2.1 "approved form" means in the form approved by Indigo and Satyam
and for the purpose of identification initialled by or on behalf
of them or in the form executed by them at the same time as this
Agreement;
1.2.2 "Encumbrance" means any interest or equity of any person
(including any right to acquire, option or right of pre-emption)
or any mortgage, charge, pledge, lien, claim, assignment,
hypothecation, security interest, title retention or any other
security interest, charge, title retention or any other security
agreement or arrangement;
1.2.3 "Final Completion" means performance of the obligations assumed
by the parties respectively under Clause 4.2;
1.2.4 "Initial Completion" means performance of the obligations assumed
by the parties respectively under Clause 4.1;
1.2.5 "Share Purchase Agreement" means the share purchase agreement,
dated 15 September 1999, entered into between Mr Michael Watt
(subsequently released and novated to Indigo), the Company,
Cricinfo Pvt. Limited and Dr Simon King, as varied and amended;
1.2.6 "Shares" means the 25 shares of GB(Pounds)1 each in the Company
held by Indigo at the date of this Agreement or any successor
shares arising pursuant to any group re-organisation.
2. SALE AND PURCHASE OF THE SHARES
2.1 Subject to the terms of this Agreement Indigo shall sell with full title
guarantee, and Satyam shall buy with the benefit of such a guarantee, the
Shares free from all Encumbrances and together with all rights attached or
accruing to them and together with all dividends and distributions in
respect of any period ending after the date of this Agreement or declared,
paid or made after that date.
2.2 Neither Indigo nor Satyam shall be obliged to complete the sale and
purchase of any of the Shares unless the purchase of all the Shares is
completed simultaneously.
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2.3 Initial Completion of this Agreement is subject to and conditional upon the
following conditions precedent being satisfied (or waived by Satyam in its
discretion):
(a) Satyam having subscribed for 19 shares in the capital of the
Company on such terms as Satyam and the Company shall agree,
subject only to the payment of the consideration therefor;
(b) the board of directors of the Company shall have
unconditionally and irrevocably resolved that, upon delivery
to the registered office of the Company of certificate(s)
representing the Shares and a duly executed and stamped
stock transfer form in respect thereof, the transfer of the
Shares to Satyam (or to such person as it may direct) is
approved and the secretary of the Company is instructed to
amend the books and records of the Company accordingly to
reflect that Satyam (or such person as it may direct) shall
be registered as the owner of the Shares; and
(c) the representations and warranties set forth or referred to
in clause 5 of this Agreement shall be true and correct as
of Initial Completion;
2.3.2 Indigo shall be entitled until Final Completion to vote the
Shares in all respects but covenants that from the date of
signing of this Agreement until the earlier of termination of
this Agreement or Final Completion, it shall not vote the Shares
in a way that would adversely affect Satyam.
3. CONSIDERATION AND TERMINATION
3.1 The consideration shall be U.S. $28,800,000 to be satisfied, at the
election of Satyam, in any combination of cash (in US Dollars) and/or by
the issue to Indigo of American Depository Receipts ("ADRs") in Satyam to
such value (the number of ADRs ("the Consideration ADRs") to which Indigo
is entitled being calculated by reference to the average of bid and offer
prices of ADRs in Satyam as at close of trading on the Nasdaq market on the
date 2 business days prior to registration of the Consideration ADRs being
first declared effective by the Securities and Exchange Commission
("SEC")), it being acknowledged by the parties that the Consideration ADRs
shall not be delivered to Indigo, and no legal or beneficial interest in
the Consideration ADRs may be
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transferred by Indigo, until the SEC has first declared the Registration
Statement in respect of such Consideration ADRs effective.
3.2 If any of the Consideration is not being paid in cash, Satyam shall use its
best endeavours to achieve an effective listing on the Nasdaq market for
the Consideration ADRs and in addition to ensure that a registration
statement in appropriate form ("Registration Statement") is filed with the
Securities Exchange Commission prior to close of trading on the Nasdaq
market on 30 May 2000 and shall use its best endeavours to cause such
Registration Statement to be declared effective on or before 31 July 2000.
Satyam shall owe no further obligations to Indigo (or any permitted
transferee of Indigo) with respect to the Consideration ADRs.
3.3 In the event that (i) all conditions set forth in clause 2.3 have not been
satisfied or waived prior to 31 July 2000 and/or (ii) either the
Registration Statement has not been declared effective by the SEC or the
consideration has not been paid in cash, the obligations of the parties
under this Agreement shall terminate (except as regards Clauses 6.2, 6.3,
and 6.11) and no party shall have any further obligation to the other
except as regards any breach arising prior to such date. Upon such
termination, all entitlement of Satyam to the Shares shall cease and the
certificates of the Shares and the stock transfer forms shall be
redelivered by Biddle to Indigo together with any dividend or distributions
received by Satyam, and all entitlement of Indigo to any shares of Satyam
shall terminate. Satyam shall accordingly deem Biddle released from its
solicitor's undertaking described in Clause 4.2.
4. COMPLETION
4.1 Initial Completion of the sale and purchase of the Shares shall be
completed at the offices of Biddle at 1 Gresham Street, London EC2V 7BU
simultaneously with the satisfaction of the conditions described in Clause
2.3 when Indigo or its representatives shall deliver to Satyam or its
representatives certified copies of (i) the certificate for the Shares,
(ii) the relative stock transfer form duly executed in favour of Satyam,
and (iii) irrevocable instructions (in form reasonably satisfactory to
Satyam) to its lawyers Biddle, and a solicitor's undertaking from Biddle to
Satyam, to the effect that the original certificate and stock transfer form
shall be released to Satyam, or as it shall direct at Final Completion,
immediately upon the earlier to occur of the registration of the
Consideration ADRs with the Securities Exchange
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Commission becoming effective or the consideration being otherwise
satisfied in cash in US Dollars.
4.2 Final Completion of the sale and purchase and delivery of the Shares shall
take place at the offices of Biddle at 12.00 noon (English time) on the
business day in England following the effective date of the Registration
Statement and listing on the Nasdaq market, or, if Satyam is paying the
consideration wholly in cash, such earlier date as Satyam notifies Indigo
that Final Completion is to occur, when:
(a) Satyam or its representatives shall deliver to Biddle on behalf
of Indigo a certificate of a duly authorised officer of the
relevant depositary of the underlying shares in Satyam confirming
the issuance of the ADR certificates in favour of Indigo
representing the Consideration ADRs in Satyam and a confirmation
by an officer of Satyam on behalf of Satyam attesting that the
Registration Statement has become effective pursuant to the
Securities Act 1933, as amended (such certificate and
confirmation to be faxed to Biddle and marked to the attention of
Martin Winter (on the date of Final Completion) on Int. +44 020
7606 3305 and forthwith thereafter to be sent by courier to
Biddle or the consideration shall be otherwise satisfied in cash
in U.S. Dollars by a telegraphic transfer to the client account
of Biddle at National Westminster Bank plc, 31 Cheapside, London
EC2V 6AN, England, account number 25606115, sort code 60-05-11);
and
(b) Biddle shall release the original certificates for the Shares and
the stock transfer forms held by it to Satyam or its
representatives in full discharge of its solicitor's undertaking.
4.3 Subject always to Final Completion, Indigo hereby agrees to waive all
rights granted to it under the Share Purchase Agreement.
4.4 On registration of the Consideration ADRs or payment of the consideration
in cash, Indigo shall forthwith procure the release by Biddle of the
relative share certificate and stock transfer form to Satyam or as it shall
direct. If Satyam pays the consideration in cash, all entitlement of Indigo
to the Consideration ADRs shall terminate.
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5. WARRANTIES
(a) Indigo warrants and undertakes to Satyam that at the date of this
Agreement and as at Initial Completion Indigo is the beneficial
owner free from Encumbrances of the Shares and entitled to sell
and transfer (subject only to satisfaction of the condition set
forth in clause 2.3(b)) the full legal and beneficial ownership
in the Shares to Satyam on the terms set out in this Agreement.
(b) Indigo further represents warrants and undertakes as of Initial
Completion in the terms of Schedule 1.
6. GENERAL
6.1 Announcements and confidentiality
Other than an announcement in the approved form, no announcement, press
release, statement, comment or circular relating to this Agreement or any
matter referred to in this Agreement shall be published made or issued by
or on behalf of any party, and neither party shall disclose any other
confidential information relating to the other or the other's business of
which it becomes aware without the prior written approval of the other
party save that each party reserves the right to publish, make or issue any
announcement, press release, statement, comment or circular required by
law, or the rules of the NASD or the SEC.
6.2 Costs and expenses
Subject to the other terms of this Agreement, each of the parties shall pay
its own costs and expenses in relation to the negotiation, preparation and
implementation of this Agreement and Satyam shall pay all stamp duty on the
transfer of the Shares to Satyam.
6.3 Entire agreement
This Agreement (together with any documents referred to in it) sets out the
entire agreement and understanding between the parties or any of them in
connection with the sale and purchase of the Shares and the other matters
dealt with in this Agreement and supersedes any previous agreement between
the parties in relation to all such
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matters. Each of the parties acknowledges that, in entering into this
Agreement, it has not relied on any representation or warranty, including
any pre-contractual representation (other than a fraudulent pre-contractual
misrepresentation), of any other party which is not expressly set out or
referred to in this Agreement or in any document expressly referred to in
this Agreement. No person who is not a party to this Agreement has any
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this Agreement but this does not affect any right or remedy of a
third party which exists or is available apart from that Act.
6.4 Variation
No variation of this Agreement shall be valid or effective unless made by
one or more documents in writing signed by or on behalf of each of the
parties. For the avoidance of doubt the terms of this Agreement may be
varied by agreement of the parties but without the consent of any third
party whether or not the rights of such third party are affected by such
variation.
6.5 Successors
This Agreement is not assignable but it shall be binding upon and enure for
the benefit of each party's successors in title.
6.6 Effect of Final Completion
The provisions of this Agreement, insofar as they are not performed at
Final Completion or are capable of operating or taking effect after Final
Completion, will remain in full force and effect and capable of so
operating after and notwithstanding Final Completion.
6.7 Release and indulgence
6.7.1 No waiver by either party of any of the requirements of this
Agreement or of any of its rights under this Agreement shall
release the other party from full performance of its remaining
obligations under this Agreement.
6.7.2 No failure to exercise or delay in exercising or enforcing any
right, power or remedy under this Agreement shall constitute a
waiver and no single or partial exercise or enforcement or non-
exercise or non-enforcement of any right,
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power or remedy under this Agreement shall in any circumstances
preclude or restrict any further or other exercise or enforcement
or the exercise or enforcement of any other right, power or
remedy.
6.7.3 The rights, powers and remedies provided in this Agreement are
cumulative and not exhaustive of any rights, powers and remedies
provided by law.
6.8 Severability
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired.
6.9 Further assurance
Notwithstanding Final Completion each party shall from time to time execute
all such documents and take all such steps or procure (insofar as each of
them is able so to do) other necessary persons so to do as the other party
may reasonably require in order to give the other party the full benefit of
this Agreement.
6.10 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument which shall only be deemed executed
when counterparts executed by all the parties are delivered. Delivery for
this purpose shall be deemed effective when any party confirms in writing
(including by facsimile transmission) that he has executed any counterpart.
6.11 Governing law
This Agreement shall be governed by and construed in all respects in
accordance with English law and each of the parties submits to the
jurisdiction of the English Courts.
EXECUTED by each of the parties on the date appearing at the beginning of
this Agreement.
SIGNED by )
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For and on behalf of )
Indigo Holdings Limited )
In the presence of: )
Michael Collins
The Flat
7756 Marks Road
56, Helier,
Jersey J62 4WD
SIGNED by )
For and on behalf of )
Satyam Infoway Limited )
In the presence of:- )
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SCHEDULE 1
INVESTMENT REPRESENTATIONS
Indigo hereby represents and warrants as follows:
1. That Indigo is as of the date hereof.
1.1 a natural person whose individual net worth, or joint net worth
together with such person's spouse, exceeds $1,000,000 at the time of
purchase; or
1.2 a natural person with individual income in excess of $200,000 in each
of the two most recent years or joint income with such person's spouse
in excess of $300,000 in each such year and with a reasonable
expectation of reaching the same level of income in the current year;
or
1.3 an employee benefit plan with total assets in excess of $5,000,000
which is established or maintained by a state, political subdivision
or their agencies or instrumentalities; or
1.4 an organisation as described in Section 501(C) (3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
Consideration ADRs, with total assets in excess of $5,000,000; or
1.5 a trust with assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Consideration ADRs, whose purchase
is directed by a person who has such knowledge and experience in
financial and business matters that he is capable of evaluating the
merits and risks of an investment in the Consideration ADRs; or
1.6 an entity in which all of the equity owners meet one or more of the
above criteria.
2. Indigo is acquiring the Consideration ADRs solely for Indigo's own account.
It is not acquiring the Consideration ADRs with a view to, or for resale in
connection with, the distribution or other disposition thereof in violation
of any federal or state securities laws;
3. Indigo's knowledge and experience in financial and business matters are
such that Indigo is capable of evaluating the merits and risks of its
investment in the Consideration ADRs,
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and has made its own independent valuation with respect to the value of the
Consideration ADRs;
4. Indigo understands that the Consideration ADRs is a speculative investment
which involves a high degree of risk of loss of the investment therein,
Indigo's financial situation is such that Indigo can afford to bear the
economic risk of holding the Consideration ADRs acquired by Indigo
hereunder for an indefinite period of time, has adequate means for
providing for Indigo's current needs and contingencies and can afford to
suffer the complete loss of the investment in the Consideration ADRs;
5. Indigo understands that no federal agency (including the Securities and
Exchange Commission), state agency or foreign agency has made or will make
any finding or determination as to the fairness of an investment in the
Consideration ADRs (including as to the purchase price);
6. Indigo is not a US Person (as defined in the Securities Act of 1933, as
amended (the "Securities Act");
7. Without prejudice to the provisions of this Agreement, Indigo understands
that the offer and sale of the Consideration ADRs have not been registered
under the Securities Act, by virtue of Section 4(2) of the Securities Act,
or under the securities laws of any state of the United States or of any
foreign jurisdiction;
8. Indigo understands that no resales of the Consideration ADRs may be
effected unless the resale of the Consideration ADRs is registered under
the Securities Act or an exemption therefrom is available and all
applicable state and foreign securities laws are complied with;
9. Indigo understands that appropriate restrictive legends may be placed on
the certificates representing the Consideration ADRs acquired by Indigo
hereunder but that these will be removed upon the registration for resale
of the Consideration ADRs becoming effective;
10. Indigo understands that a notation shall be made prior to Final Completion
indicating that the Consideration ADRs may be subject to restrictions on
transfer and that prior to Final Completion appropriate stop-transfer
instructions will be issued to the securities transfer agent with respect
to the Consideration ADRs but that these will be removed upon the
registration for resale of the Consideration ADRs becoming effective.