Share Sale and Purchase Agreement - Wipro Ltd. and KPN Asia Mauritius Holding
SHARE SALE AND PURCHASE AGREEMENT
THIS SHARE SALE AND PURCHASE AGREEMENT is made as of this 12/th/ day of December
2000 by and between:
1. WIPRO LIMITED, a company incorporated in accordance with the laws of India,
having its registered office at Doddakannelli, Sarjapur Road, Bangalore -560
035 (hereinafter referred to as "the Buyer" which expression shall unless it
be repugnant to the context be deemed to include its successors in title and
permitted assigns); and
2. KPN ASIA MAURITIUS HOLDING, a private limited company incorporated in
accordance with the laws of Mauritius, having its registered office at 10,
Frere Felix de Valois Street, P.O. Box 799, Port Louis, Mauritius
(hereinafter referred to as "the Seller" which expression shall unless it be
repugnant to the context be deemed to include its successors in title and
permitted assigns )
WHEREAS:
(A) The Seller owns 10,076,540 fully paid equity shares (the "Sale Shares") in
the share capital of the Company.
(B) The Seller had agreed to sell and the Buyer had agreed to purchase the
Sale Shares and following such agreement the approval dated May 25, 2000
and the amendments dated 28/th/ August 2000 and 7/th/ November 2000 (valid
until 31/st/ December 2000) had been obtained by the Buyer for purchase of
the Sale Shares
(C) The Parties wish to record in this Agreement the terms and conditions of
the sale and purchase of the Sale Shares.
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES as follows:
1. DEFINITIONS & INTERPRETATIONS
1.1 Definitions
In this Agreement, unless the context requires otherwise:
"Company" shall mean Wipro Net Limited, an Indian company having its
registered office at Du Parc Trinity, 10/th/ Floor, 17, M. G. Road,
Bangalore.
"Transfer" means completion of the sale and purchase of the Sale Shares as
specified in clause 4.2 after the conditions have been satisfied as listed
in clause 4.1:
"Transfer Date" shall be December 22, 2000 or such other date as the
Parties may agree on which the Transfer shall take place
"Consideration" means the consideration for the transfer of the Sale Shares
being the sum specified in Clause 3.
"Corporate Approvals" means the internal corporate approval obtained by the
Seller and the Buyer respectively for selling and buying respectively the
Sale Shares.
"Escrow Agent" refers to The Hong Kong and Shanghai Banking Corporation
Limited, Manipal Centre, North Block, Dickenson Road, Bangalore 560 042 who
shall be given a copy of this
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Agreement and who shall confirm in writing his acceptance to act as the
Escrow Agent strictly in accordance with the terms hereof.
"Parties" shall mean the Seller and the Buyer collectively; and "the Party"
shall mean individually any of the Parties.
"Sale Shares" means the 10,076,540 equity shares of Rs.10/- each in the
equity share capital of the Company bearing distinctive numbers 15219183 to
22392312 (7173130 shares) and distinctive numbers 00000002 to 02903411
(2903410 shares) to be bought and sold pursuant to Clause 2 free from all
liens, charges and encumbrances and together with all rights now or
hereafter attaching hereto.
1.2 Interpretation
Unless otherwise stated or unless the context otherwise requires, in
this Agreement:
(a) Headings are for convenience only and shall not affect its
interpretation.
(b) Where a word or phrase is defined, other parts of speech and
grammatical forms of that word or phrase shall have corresponding
meanings.
(c) References to the recitals, Clauses and Exhibits shall be references
to the recitals, clauses and exhibits of this Agreement.
(d) References to statutes shall be a reference to the statutory
enactments, rules and regulations (as modified, amended or re-enacted
as of the appropriate date) in force.
2. SALE AND PURCHASE OF SALE SHARES
Subject to the terms and conditions of this Agreement the Seller hereby
agrees (as legal and beneficial owner) to sell, assign, transfer and convey
to the Buyer all of its rights, obligations, title and interests in and to
the Sale Shares, and the Buyer hereby agrees to purchase, acquire and
accept all of the Seller's rights, obligations, title and interest in and
to the Sale Shares.
3. CONSIDERATION FOR SALE OF SALE SHARES
The consideration payable to the Seller for the purchase of the Sale Shares
by the Buyer shall be USD 23,250,000 (United States Dollar Twenty Three
million and Two Hundred and Fifty thousand) ("the Consideration").
4. TRANSFER OF SALE OF SALE SHARES
4.1 The transfer actions under Clause 4.2 are subject to the following
conditions on or before the transfer date:
(a) receipt by the Seller from the Buyer of the following:
(i) True copy of the approval of the Reserve Bank of India dated May
25, 2000 and and the amendments dated 28/th/ August 2000 and
7/th/ November 2000 (valid until 31/st/ December 2000) for the
transfer of the Sale Shares.
(ii) certified true copy of the resolution of the Board of Directors
of the Buyer authorising the execution of this Agreement and the
purchase of the Sale Shares.
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(b) receipt by the Buyer from the Seller, of a certified true copy of the
resolution of the Board of Directors of the Seller authorising the
execution of this Agreement and the Sale of the Sale Shares.
(c) the Buyer shall have affixed or placed the applicable stamp duty on
the duly filled up, executed and revalidated share transfer form.
(d) After the execution of this agreement the Seller shall execute the
stamped transfer deed and the Buyer shall take necessary steps to get
the transfer form revalidated, as per the requirements of the
Companies Act, 1956.
(e) Appointment of Escrow agent
(f) The Buyer to handover the revalidated executed transfer deed to the
escrow agent
(g) the Buyer shall have transferred the Consideration to the Buyer's bank
account with The Hong Kong and Shanghai Banking Corporation Limited,
Manipal Centre, North Block, Dickenson Road, Bangalore 560 042, India.
4.2 On the fulfillment of the conditions set out in Clause 4.1 above, the
Parties shall proceed to transact the following business:
(a) the Seller shall deliver the following documents to the Escrow Agent to
be held in trust until such time as the Escrow Agent receives a
confirmation in terms of Clause 4.2(d) below:
(i) original share certificates evidencing the Sale Shares.
(ii) Original and revalidated share transfer forms duly executed,
signed, sealed and validly executed by the Seller for the purpose
of transfer of the Sale Shares by the Seller to the Buyer.
(iii) A facsimile copy of the resolution passed by KPN Asia Mauritius
Holding, authorising the sale of shares for a consideration of US
Dollars 23.25 million, executing the Termination and Release
Agreement, Share Sale and Purchase Agreement and the Escrow
Agreement.
(b) the Escrow Agent shall confirm receipt of the documents as per Clause
4.2 (a) above to the Buyer.
(c) on the Escrow Agent giving the confirmation in Clause 4.2(b) above, the
Buyer shall authorise The Hong kong & Shanghai Banking Corporation
Limited, Manipal Centre, North Block, Dickenson Road, Bangalore 560
042, India to remit the Consideration to the account of the Seller in
The Hong Kong and Shanghai Banking Corporation Limited, Mauritius.
(d) upon the Seller's Bank confirming the receipt of the Consideration, the
Escrow Agent shall hand over the documents referred to in Clause 4.2
(a) above to the Buyer.
(e) the Buyer shall lodge the documents (referred to in Clause 4.2(a)) with
the Company for transfer and at a meeting of the Board of Directors of
the Company, the transfer of the Sale Shares to the Buyer shall be
approved; and the Buyer shall obtain a confirmation from the Company to
this effect along with a certified copy of the resolution of the
Company's Board recording the transfer of the Sale Shares in favour of
the Buyer and the share certificates evidencing the endorsement in
favour of the Buyer.
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(f) the Buyer shall deliver to the Seller a copy of the resolution of the
Company's Board recording the transfer of the Sale Shares in favour of
the Buyer.
5. WARRANTIES
The Seller hereby represents and warrants to the Buyer as follows:
(a) The Seller has full legal right, power and authority to enter into,
execute and deliver this Agreement and to perform the obligations,
undertakings and transactions set forth herein, and this Agreement has
been duly and validly executed and delivered by the Seller and
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms; and
(b) The Seller has all requisite power to own and dispose of the Sale
Shares to be sold by it under the Mauritius laws:
(c) The Sale Shares are owned by the Seller free and clear of all pledges,
security, interest, liens, charges, encumbrances, equities, claims,
options, or limitations affecting his ability to vote such Sale Shares
or to transfer such Sale Shares or instruments to the Buyer and such
Sale Shares have been validly authorised and issued and are fully
paid.
(d) The Seller has not entered into any contracts, arrangements or
engagements with any third party(ies) or done any acts which may at a
later stage lead to any material liabilities for the Company other
than the acts done by them in the usual and ordinary course of
business.
(e) The transfer of the Sale Shares to the Buyer hereunder will convey to
the Buyer good and marketable title to the Sale Shares, free and clear
to any claims, security interests, liens and encumbrances whatsoever.
The Buyer hereby represents and warrants to the Seller as follows:
(a) The Buyer has full legal right, power and authority to enter into,
execute and deliver this Agreement and to perform the obligations,
undertakings and transactions set forth herein, and this Agreement has
been duly and validly executed and delivered by the Buyer and
constitutes his legal, valid and binding obligation, enforceable
against him in accordance with its terms; and
(b) Subject to this Agreement, the Buyer shall cause the funds to be
available sufficient to acquire and pay for all of the Sale Shares and
otherwise to consummate the transactions contemplated by this
Agreement on the terms and conditions contemplated hereby.
(c) Other than the Reserve bank of India approval dated May 25, 2000 and
the amendments dated 28/th/ August 2000 and 7/th/ November 2000 (valid
until 31/st/ December 2000), no other approval of the Government
authorities in India is required by the Buyer for consummation of the
transactions contemplated by this Agreement.
6. MISCELLANEOUS
6.1 Subject to any separate agreement to the contrary between any or all of the
Parties, each Party to this Agreement shall pay its own costs and
disbursements incidental to this Agreement.
6.2 All stamp duties payable for the transfer of the Sale Shares shall be to
the account of the Buyer.
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6.3 All notices, communications and other correspondence required or permitted
by this Agreement shall be in writing and shall be sent by (a) fascimile,
with confirmation copy sent by registered first class airmail, (b) by
personal delivery with acknowledgement of receipt or (c) by registered,
first class air mail, return receipt requested and postage prepaid, to the
following address:
in the case of the Buyer to Corporate Vice-President- Legal & Company
Secretary
Wipro Limited
Doddakannelli,
Sarjapur Road,
Bangalore - 560 035
Fax: 91 (80) 844 0054
In the case of the Seller Director
39, Robinson Road
#15-01, Robinson Point
Singapore 068911
Fax: 0065 538 5255
All such notices, communications and correspondence shall be sent and
deemed to have been received as follows: (i) if by facsimile upon receipt
of the confirmation copy: and (ii) if by personal delivery, courier or
registered, first class airmail, upon receipt or refusal of delivery. A
Party may change the address to which notices are to be sent by a notice
complying herewith to that effect. All notices will be in English.
6.4 The sale and purchase of the Sale Shares shall be completed on or before
22nd December 2000. Each of the Parties undertakes to the other to take in
good faith, all the requisite steps to be taken by it to effect the
Transfer on or before the Transfer Date and in the event of failure by
either the Seller or the Buyer to fulfill its obligation hereunder, the
other shall be entitled to seek specific performance by the Party in
default. Notwithstanding the above, in the event the Transfer is not
effected by December 22, 2000, both the Seller and the Buyer shall be
entitled to exercise all its rights under the JV Agreements. The Seller
shall also not be liable for any act or omission in respect of Wipro Net
during the period May 16, 2000 till December 22, 2000. The Buyer
acknowledges that the Seller has entered into this Agreement for a
consideration of US$ 23.25 million in order to expedite the Transfer of
Sale Shares, and agrees that, without prejudice to the rights of the Seller
specified above, in case the Transfer is not achieved by the Transfer Date,
the Seller shall, at its discretion, have the right to pursue any other
rights and remedies available to it against the Buyer as if this Agreement
has not been executed.
7. GOVERNING LAW AND JURISDICTION
7.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of India.
7.2 Any dispute, controversy or claim arising out of or in relation to this
Agreement or the breach, termination or invalidity thereof, if the same
cannot be settled amicably among the Parties concerned, shall be settled by
final and binding arbitration in accordance with the Rules of Conciliation
and Arbitration of the International Chamber of Commerce. The arbitration
proceedings shall take place at New Delhi in India and the proceedings
shall be exclusively in English.
7.3 No Party shall be entitled to commence or maintain any action in a court of
law upon any matter in dispute until such matter shall have been submitted
to arbitration and determined as provided
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above, and then only for the enforcement of the arbitral award., except
that any party may approach the court for conservancy and provisional
measures for injuctive relief.
7.4 Pending the resolution of a dispute by arbitration, the Parties shall,
except in the event of termination, continue to perform all their
obligations under this Agreement without prejudice to a final adjustment in
accordance with the arbitral award.
7.5 In the event that it is necessary for either of the parties to this
agreement to commence arbitration to enforce any of the provisions hereof,
the party prevailing in the arbitration or action shall be entitled to
collect from the other party and to have added to and included in any award
or judgement rendered in such arbitration or action such additional sum as
the arbitrator or court shall deem reasonable for lawyers' fees.
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by )
for and on behalf of )
WIPRO LIMITED )
in the presence of: )
SIGNED by )
for and on behalf of )
KPN ASIA MAURITIUS HOLDING )
in the presence of: )
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