THIS DEED OF RATIFICATION
AND ACCESSION CUM AMENDMENT ("this Deed") is made the 6th
day of January 2003 BETWEEN:
GLADE TRADING COMPANY PRIVATE LIMITED, a company incorporated in India and having its registered office at 1 Sumer Kendra, Pandurang Budhkar Marg, Worli, Mumbai 400018, India ("Glade Trading");
PACIFIC INTERNET INDIA PRIVATE LIMITED, a company incorporated in India and having its registered office at 105 Sumer Kendra, Pandurang Budkhar Marg, Worli, Mumbai 400018, India (the "Company");
PRIMEAST INVESTMENTS LTD, a company incorporated in India and having its registered office at Devatha Plaza, 131 Residency Road, Bangalore 560025, India ("Primeast"); and
PACIFIC INTERNET LTD, a company incorporated in Singapore and having its registered office at 89 Science Park Drive, #02-05/06, The Rutherford, Singapore 118261 ("PI").
(hereinafter the Company, Primeast and PI shall collectively be referred to as "the Existing JVA Parties").
On the 28th day of February 2001, the Existing JVA Parties entered into a joint venture agreement (the "JVA") to regulate the relationship of PI and Primeast inter se as shareholders of the Company.
Pursuant to Clause 3 of the JVA, Glade Trading was required to transfer the Shares held by it representing 49% of the total issued and paid-up capital of the Company to Primeast on or before 15 July 2001.
The Existing JVA Parties and Glade Trading are desirous of:
amending Clause 3 of the JVA in order to reflect a new shareholding structure in respect of the Company wherein Glade Trading shall retain a higher percentage of the Shares in the Company than earlier contemplated; and
amending Clause 5.1.1 of the JVA to increase the number of directors who constitute the Board of Directors of the Company.
The Existing JVA Parties and Glade Trading agree to enter into this Deed in order to:
make Glade Trading a party to the JVA;
ratify and sanction the new shareholding structure of the Company; and
effect the requisite amendments to the JVA.
NOW THIS DEED WITNESSES as follows:
In this Deed, except as the context may otherwise require,
all words and expressions defined in the JVA shall have the same meanings
when used herein.
The Existing JVA Parties and Glade Trading hereby agree that
all references to the Local Partner in the JVA as supplemented by this Deed
shall refer to Primeast and Glade Trading jointly unless otherwise expressly
referred to herein.
In consideration of the terms, conditions and mutual covenants
herein contained, the sufficiency and adequacy of which the Existing JVA
Parties hereby acknowledge, the Existing JVA Parties agree and covenant
that Clauses 3 and 5.1.1 of the JVA shall be deleted and replaced by the
following new Clauses 3 and 5.1.1:
The Parties hereby agree that within sixty (60) days from
the date the last of the Requisite Approvals (as defined in Clause 3.2 below)
has been obtained, the Parties shall procure the holding of the necessary
meetings of the Directors and the shareholders of the Company in order to
effect the shareholding structure of the Company in the following manner:
Percentage of total
issued and paid-up capital
Local Partner (excluding
The Parties hereby acknowledge that the new shareholding
structure of the Company as outlined in Clause 3.1 above is subject to:
prior written approval from the Foreign Investment Promotion Board
of India ("FIPB Approval"); and
such other licences, permits, consents and/or approvals from other
statutory authorities and/or regulatory bodies as may be required under
applicable laws to give effect to the provision of Clause 3.1 hereof (if
any) ( the "Other Approvals").
(The FIPB Approval and the Other Approvals shall be collectively referred
to as the "Requisite Approvals")
The Local Partner and PI hereby agree that the Company
shall apply for the Requisite Approvals. The Local Partner and PI shall
do all acts and things necessary to assist the Company in obtaining the
Requisite Approvals expeditiously and the cost incurred thereto shall be
borne by the Shareholders in the proportions of their respective shareholdings
prior to the new shareholding structure as outlined in Clause 3.1 above.
The Parties further agree that the sixtieth (60th) day after
the last of the Requisite Approvals have been obtained shall be deemed "the
The Local Partner (excluding Glade Trading) hereby warrants
and represents to PI that on and after 15 July 2001, the foreign direct
investment in the Local Partner (excluding Glade Trading) shall not exceed
49% and management of the Local Partner (excluding Glade Trading) shall
be with Indian owners.
The Local Partner and the Company shall do all acts and
things necessary to ensure that the aforesaid shareholding structure is
duly effected on or before the Completion Date and PI shall provide all
necessary consents and approvals to effect the same.
The Parties further agree that after the shareholding structure
under Clause 3.1 hereof has been duly effected, Glade Trading and the Local
Partner (excluding Glade Trading) shall be entitled to transfer Shares held
by them to each other without the other Party’s written approval as
required under clause 9.2, subject to the following:
the Requisite Approvals (if any) being obtained;
such transfer being in accordance with the Applicable Laws
and Indian regulatory requirements;
the transferee is a Related Corporation of the transferor;
Glade Trading shall retain at least 2% of the total issued and paid-up
capital of the Company after such transfer;
the Local Partner (excluding Glade Trading) shall retain at least 26%
of the total issued and paid-up capital of the Company after such transfer;
at least fourteen (14) days prior to the intended transfer, PI shall
be notified of the same by the Local Partner via written notice; and
all costs and expenses incurred in relation to any such transfer (including
but not limited to, costs incurred to obtain the Requisite Approvals) shall
be borne by the Local Partner.
ORGANISATION OF THE COMPANY
Board Of Directors
Unless otherwise unanimously agreed upon by the Shareholders,
the Board of Directors of the Company shall comprise of six (6) directors,
being three (3) PI Directors and three (3) Local Partner Directors.
Covenants Of Glade Trading
Glade Trading hereby covenants to the Existing JVA Parties and to the
Company as trustee for all other parties who may hereinafter be bound
by the JVA as supplemented by this Deed to adhere to and be bound by all
the duties, burdens and obligations of the Local Partner pursuant to the
provisions of the JVA as supplemented by this Deed, and a Shareholder
holding the same class of shares as the Shares imposed pursuant to the
provisions of the JVA as supplemented by this Deed and all documents expressed
in writing to be supplemental or ancillary thereto as if Glade Trading
had been an original party to the JVA as supplemented by this Deed since
the date thereof.
Rights of Glade Trading
Glade Trading shall, as long as it remains a shareholder of
the Company, be independently entitled to all rights and benefits of a Shareholder
(other than those that are non-assignable) under the JVA as supplemented
by this Deed in each case as if Glade Trading had been an original party
to the JVA as supplemented by this Deed since the date thereof.
Glade Trading shall, as long as it remains a shareholder of
the Company, jointly with Primeast, exercise all rights and benefits accorded
to the Local Partner under the JVA as supplemented by this Deed in each
case as if Glade Trading had been an original party to the JVA as supplemented
by this Deed since the date thereof.
In the event Glade Trading is desirous of transferring its
shares to an unrelated third party which is not under common management
and/or control with Glade Trading and/or Primeast (the "Unrelated
Transferee"), Glade Trading shall be entitled to do so subject to
and in accordance with all provisions of the JVA as supplemented by this
Deed. In the event of such transfer and for the avoidance of doubt, the
provisions of Clauses 4.2 and 5 of this Deed shall not apply to the Unrelated
Joint And Several Obligations
Primeast and Glade Trading acknowledge that they are under common management
control and since references to the Local Partner in the JVA as supplemented
by this Deed refer to both Primeast and Glade Trading jointly, Primeast
and Glade Trading hereby acknowledge and agree that their obligations
and liability therein under are joint and several.
Representations And Warranties Of Primeast
Primeast hereby represents and warrants to PI and the Company that as
at the date hereof:
the foreign direct investment in Primeast does not exceed
49% of the total issued and paid-up capital of Primeast; and
the management of Primeast is controlled by local Indian shareholders.
JVA Still Applicable
Subject to the amendments, variations and modifications herein contained,
the JVA shall remain in full force and effect and the JVA and this Deed
shall be read as a single, integrated document as if the aforesaid amendments,
modifications and variations had formed part of the JVA.
References To Include Amendments Herein
All references to the expression "Agreement" in the JVA itself
shall be construed as references to the JVA as amended and supplemented
by this Deed.
Preservation Of Respective Parties’ Rights Under
Without prejudice to the JVA, the Existing JVA Parties hereby agree and
declare that the respective parties’ accrued rights, obligations
and liabilities under the JVA are to remain in full force and effect in
relation to and under the JVA subject to the amendments as hereinbefore
set out above.
THIS DEED SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
IN WITNESS WHEREOF this Deed has been executed as a deed on the date
first above written.