Exhibit 10.30
SHARE PURCHASE AGREEMENT
DATED
16 JULY, 2004
BETWEEN
ESSAR TELECOM INDIA HOLDINGS LIMITED("Essar")
AND
HTI (BVI) HOLDINGS LIMITED ("HTI-BVI")
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Exhibit 10.30
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") dated this 16th day of July,
2004 between:
Essar Telecom India Holdings Limited, a company with limited liability having
its registered office at ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Street, Port Louis, Mauritius
("Essar") of the FIRST PART; AND
HTI (BVI) Holdings Limited, a company with limited liability having its
registered office at PO Box 957, Offshore Incorporations Centre, Road Town,
Tortola, British Virgin Islands ("HTI-BVI") of the SECOND PART. (Essar and
HTI-BVI are hereinafter collectively referred to as the "Parties", and severally
as the "Party")
WHEREAS:
A. Essar desires to sell 4 "B" shares constituting 40% of the paid up
equity share capital of the Company as defined below (the "Sale Shares")
and the shareholders loan of US$20,725,963.12 (the "Loan"), which Sale
Shares were originally subscribed by, and the Loan was originally
provided by Distacom to the Company, and which were, pursuant to certain
share purchase agreement acquired by Essar;
B. HTI-BVI wishes to purchase the Sale Shares and the Loan from Essar;
C. Upon completion of the sale, HTI-BVI shall hold equity shares of the
Company constituting 100% of the aggregate issued and paid up equity
share capital and 100% of all shareholder loans of the Company all on
the terms and conditions more specifically set forth in this Agreement.
NOW THEREFORE, IT IS HEREBY AGREED between the Parties as follows:
1. DEFINITIONS AND INTERPRETATION.
1.1 DEFINITIONS
In this Agreement, the following words and expressions shall, except
where the context otherwise requires, have the following meanings:
"Business Day" means a day on which scheduled banks are open for
business in Mumbai, Mauritius and the British Virgin Islands;
"Company" means ▇▇▇▇▇▇▇▇▇ Telecommunications (India) Limited, a company
with limited liability having its registered office at 2nd Floor, Zephyr
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Exhibit 10.30
House, ▇▇▇▇ Street, PO Box 709, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands, British West Indies;
"Completion" means the completion of the matters provided for in Clause
4.1;
"Completion Date" means 22nd July 2004 or such earlier date as the
Parties may agree, by giving not less than 3 business days notice to
effect the Completion;
"Distacom" means Distacom India Co. Limited;
"HTIL Promissory Note" means the promissory note to be issued by HTI-BVI
in favour of Essar in the amount US$76,633,333 for the purchase of the
Sale Shares and the Loan, the form of which appears in the Schedule
attached hereto;
"Loan" means the US$20,725,963.12 shareholder loan and all interest
outstanding thereon, originally made by Distacom to the Company;
"Purchase Price" shall have the meaning set forth in Clause 2(a);
"Sale Shares" means 4 "B" shares constituting 40% of the paid up equity
share capital of the Company;
"Share" or "Shares" means one or more of the A or B shares of nominal
value of US$ one in the Company, which shall include the Sale Shares;
"US$ or Dollars" means the lawful currency of the United States of
America.
1.2 INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) words denoting the singular number shall include the plural and
vice versa;
(b) heading and bold typeface are only for convenience and shall be
ignored for the purposes of interpretation;
(c) references to this Agreement or to any other agreement, deed or
other instrument shall be construed as a reference to such
agreement, deed, or other instrument as the same may from time
to time be amended, varied, supplemented or noted;
(d) reference to any party to this Agreement or any other agreement
or deed or other instrument shall include its successors or
permitted assigns.
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Exhibit 10.30
2. SALE AND PURCHASE OF THE SALE SHARES
(a) Subject to the terms and conditions set forth in this Agreement, Essar
shall sell, and HTI-BVI shall purchase the Sale Shares and the Loan.
(b) In consideration of Essar selling the Sale Shares and the Loan to
HTI-BVI, HTI-BVI shall pay to Essar an aggregate amount of US$76,633,333
(United States Dollars seventy six million six hundred and thirty three
thousand three hundred and thirty three only) (the "Purchase Price").
(c) The payment of the Purchase Price shall be effected by HTI-BVI through
delivery to Essar of the HTIL Promissory Note on the Completion Date.
3. SHAREHOLDING OF THE COMPANY UPON COMPLETION
Upon Completion in the manner set forth in Clause 5 below, the paid up
equity shareholding and all shareholder loans of the Company shall be
owned as to 100% by HTI-BVI.
4. CONDITIONS PRECEDENT TO COMPLETION
4.1 CONDITIONS PRECEDENT
The obligation of HTI-BVI to purchase the Sale Shares in the manner set
forth in Clause 2 above shall be subject to the fulfilment (or, where
permissible, waiver in writing by HTI-BVI, as the case may be) of the
following conditions precedent:
(a) the board of directors of HTI-BVI and Essar shall have
authorised the execution of this Agreement by each of HTI-BVI
and Essar respectively, and the sale by Essar and the purchase
by HTI-BVI of the Sale Shares and the Loan in accordance with
the terms of this Agreement;
(b) Completion of the purchase of the Sale Shares and the Loan by
Essar from Distacom on or before 31st July 2004 under the share
purchase agreement between Distacom (as seller) and Essar (as
purchaser);
(c) nothing shall have occurred which would render (or have the
effect of rendering) any of the warranties and representations
contained in Clauses 6.1, untrue in any material respect; and
(d) provision by each party of certified copies of all and any
resolutions authorising each of them respectively to enter into
this Agreement and sign and do all necessary acts incidental
thereto.
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Exhibit 10.30
Each Party shall use all reasonable endeavours to procure (so far as it
lies within its respective powers) that each of the conditions precedent
set forth in this Clause 4.1 are satisfied.
4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
During the period, from the date of this Agreement till the Completion
Date, each of the Parties agrees that it shall not take any action that
will render any of its representations and warranties contained in this
Agreement false, misleading or inaccurate in any material respect as of
the Completion Date.
5. COMPLETION OF THE SALE AND PURCHASE
5.1 At Completion:
(a) HTI-BVI shall pay the Purchase Price by delivery of the HTIL
Promissory Note in the manner set forth in Clause 2(b);
(b) Essar shall sell and assign the Loan and any relevant agreements
in relation to the Loan to HTI-BVI;
(c) Essar shall:
(i) execute and deliver the necessary transfer deeds to
transfer the Sale Shares to HTI-BVI; and
(ii) hand over to Essar the share certificates of the Sale
Shares and any written instructions that may be required
to enable HTI-BVI to be registered as the owner of the
Sale Shares.
5.2 Upon Completion Essar undertakes that all representations and
warranties received by Essar from Distacom pursuant to the sale
and purchase agreement between Essar and Distacom for the
purchase by Essar of the Sale Shares and the Loan from Distacom
shall stand assigned to HTI-BVI and Essar shall deliver written
notice to Distsacom to that effect;
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF ESSAR
Essar hereby represents and warrants to HTI-BVI, that:
(a) it is a company duly incorporated and validly existing under the
laws of its country of incorporation and has corporate power to
own its assets, conduct its business as presently conducted and
to enter into, and perform its obligations under this Agreement;
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Exhibit 10.30
(b) this Agreement has been duly authorised and executed by it and
constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as the
enforceability may be limited by bankruptcy, insolvency,
reorganisation, moratorium or similar laws affecting creditors'
rights generally or the application of general principles of
equity;
(c) neither the execution or performance of this Agreement nor the
compliance with its terms, will conflict with or result in a
breach of any of the terms, conditions or provisions of, or
constitute a default or require any consent under-any indenture,
mortgage, agreement or other instrument to which Essar is a
party or by which it is bound, or violate any of the terms or
provisions of its organisational documents, by laws or other
governing documents or judgement, decree or order or any
statute, rule, regulation applicable to it;
(d) no litigation, arbitration or administrative proceedings are
pending or threatened against it, and no claim has been made
against it which is likely to have an adverse effect on the
enforceability, performance of or compliance with its
obligations under this Agreement;
(e) the Sale Shares are and will at Completion be fully paid up and
constitute 40% of the issued share capital of the Company;
(f) there is no option, pre-emption rights or other rights to
acquire and no encumbrance or charge of any nature on, over or
affecting such Sale Shares or the Loan, and there is no
agreement or commitment to give or create any of the foregoing
nor have any claims been made by any person entitled or claiming
to be entitled to any of the foregoing; and
(g) Essar being, as at the Completion Date the legal and beneficial
owner of the Sale Shares and the Loan, is and will be at
Completion entitled to sell and transfer the Sale Shares and the
Loan and pass full legal and beneficial ownership thereof to
HTI-BVI free from any encumbrance or charge of any nature
whatsoever in accordance with the terms of this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES OF HTI-BVI
HTI-BVI hereby represents and warrants to Essar, that:
(a) it is a company duly incorporated and validly existing under the
laws of its country of incorporation and has corporate power to
own its assets, conduct its business as presently conducted and
to enter into, and perform its obligations under this Agreement;
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Exhibit 10.30
(b) this Agreement has been duly authorised and executed by it and
constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as the
enforceability may be limited by bankruptcy, insolvency,
reorganisation, moratorium or similar laws affecting creditors'
rights generally or the application of general principles of
equity;
(c) neither the execution or performance of this Agreement nor the
compliance with its terms, will conflict with or result in a
breach of any of the terms, conditions or provisions of, or
constitute a default or require any consent under-any indenture,
mortgage, agreement or other instrument to which HTI-BVI is a
party or by which it is bound, or violate any of the terms or
provisions of its organisational documents, by laws or other
governing documents or judgement, decree or order or any
statute, rule, regulation applicable to it;
(d) no litigation, arbitration or administrative proceedings are
pending or threatened against it, and no claim has been made
against it which is likely to have an adverse effect on the
enforceability, performance of or compliance with its
obligations under this Agreement;
(e) it has full power and authority to issue the HTIL Promissory
Note and the same is valid and enforceable. Essar may not assign
or transfer all or any of its rights and benefits in respect of
the HTIL Promissory Note to any person except ▇▇▇▇▇▇▇▇▇
Telecommunications (India) Limited without the consent from
HTI-BVI, by endorsement and delivery.
7. MISCELLANEOUS
7.1 NOTICES
(a) All notices or other communications to be given under this
Agreement, shall be in writing and shall either be personally
delivered or sent by registered post, courier, telex or
facsimile transmission and shall be addressed for the attention
of the persons addressed below:
If to HTI-BVI:
Address: PO Box 957, Offshore Incorporations Centre,
Road Town,
Tortola, British Virgin Islands
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to : ▇▇▇▇▇▇▇▇▇ Whampoa limited
22nd /F ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
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Exhibit 10.30
Fax Number: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Head Group General Counsel
If to Essar:
Address: 10, Frere ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Street
Port Louis, Mauritius
Fax Number: (▇▇▇▇) ▇▇▇▇ ▇▇▇
marked for the attention of: ▇▇.▇▇▇▇▇▇▇ Anivath
With a copy to : ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
Fax Number: (9122) 2495 5833
Attention: ▇▇.▇▇▇▇▇▇ ▇▇▇▇▇
(b) Any Party may, by notice, change the address to which such
notices and communication are to be delivered or transmitted.
(c) A notice shall be deemed to have been served as follows:
(i) if personally delivered, at the time of delivery;
(ii) if sent by registered post or courier, at the time of
delivery thereof to the person receiving the same; or
(iii) if sent by facsimile transmission, in the absence of any
indication that the facsimile transmission was distorted
or garbled, at the time of production of a transmission
report by the machine from which the facsimile was sent,
which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient
notified for the purposes of this Clause 7.
7.2 NO WAIVER
No waiver of any provision of this Agreement, nor consent to any
departure from it by any Party, is effective unless it is in writing. A
waiver or consent will be effective only for the purpose for which it
was given. No default of delay on the part of any Party, in exercising
any rights, powers or privileges operates as a waiver of any right, nor
does a single or partial exercise of a right preclude any exercise of
other rights, powers or privileges. The remedies
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Exhibit 10.30
herein provided are cumulative and not exclusive of any remedies
provided by law.
7.3 AMENDMENT
No amendment, variation, alteration or modification of this Agreement
shall be effective, unless made in writing and signed by all the Parties
to this Agreement.
7.4 ASSIGNMENT
No Party shall assign or transfer or purport to assign or transfer any
of its rights or obligations under this Agreement, without the prior
written consent of the other Party.
7.5 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong.
7.6 SEVERABILITY
If any provision of this Agreement, or any part thereof, is declared or
held to be invalid, illegal or unenforceable in any respect under
applicable law, such invalidity, illegality or unenforceability shall
not invalidate this entire Agreement. In that case, this Agreement shall
be construed, so as to limit any term or provision, so as to make it
enforceable or valid within the requirements of applicable law, and, in
the event that such term or provision cannot be so limited, this
Agreement shall be construed to omit such invalid, illegal or
unenforceable provision.
7.7 NO THIRD PARTY BENEFICIARY
Nothing expressed or mentioned in this Agreement is intended or will be
construed to give any person other than the Parties and their permitted
assigns and successors, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provisions contained in it.
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Exhibit 10.30
7.8 Counterparts
This Agreement is executed in counterparts, by each of the Parties, and
each of the counterparts shall, constitute an original, but all of them
shall constitute only one document.
IN WITNESS WHEREOF, the parties have entered into this Agreement, the day and
year first above written.
ESSAR TELECOM INDIA HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorised signatory
HTI (BVI) HOLDINGS LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Director
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Exhibit 10.30
SCHEDULE 1
PROMISSORY NOTE
July 2004
To:
ESSAR TELECOM INDIA HOLDINGS LIMITED
10, Frere ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Street,
Port Louis,
Mauritius
ON DEMAND, We, HTI (BVI) Holdings Limited (the "Maker") unconditionally promise
to pay the Payee at its registered office located at ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Street, Port Louis, Mauritius or at such other place as Payee may designate, the
principal sum of US$76,633,333.
The Maker does hereby acknowledge that time is of the essence hereof, and
unconditionally promises, that for any principal sum due under this Note, if not
received by Payee within Three (3) business days after the date Payee makes
demand for payment of such sum, the Maker shall pay, in addition to the amount
of such sum, a late payment charge of 10% percent per annum (Ten percent per
annum) until realization.
FOR HTI (BVI) HOLDINGS LIMITED
Authorized Signatory
Witness :
______________________________
Name : ______________________
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