SUPPLEMENTAL AGREEMENT
Exhibit 4.41
DATED 2005
The Vendors
(whose names are hereinafter set out)
- and -
INDIAGAMES LIMITED
- and -
▇▇▇ ONLINE GAMES LIMITED
THIS AGREEMENT is made on the day of 2005
BETWEEN:
| (1) | ▇▇▇▇▇▇ ▇▇▇▇▇▇, son of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at 14A1 Chanoralayam ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ (“Founder”); |
| (2) | INFINITY TECHNOLOGY TRUSTEE PRIVATE LIMITED, a company incorporated under the Companies Act, 1956 and having its registered office at ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ 400 023, India (“Infinity”); |
| (3) | ▇▇▇▇ FUND TRUSTEE COMPANY LIMITED, a company incorporated under the Companies Act, 1956 and having its registered office at USI Complex, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, which is represented by IL&FS INVESTMENT MANAGERS LIMITED, a company incorporated under the Companies Act, 1956 and having its registered office at The ILFS Financial Centre, Plot Number ▇-▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ (“IL&FS”); |
| (4) | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, son of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at 14A1, Chandralayam Building, Postal Colony Road, Sarvodaya Estate, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (5) | ▇▇▇▇▇▇ ▇▇▇▇▇▇, wife of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gondal residing at 14A1, Chandralayam Building, Postal Colony Road, Sarvodaya Estate, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (6) | ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gondal, residing at 14 A 1, Chandralayam Building, Postal Colony Road, Sarvodaya Estate, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (7) | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AIL, son of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ AIL residing at ▇/▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (8) | ▇▇▇▇▇ ▇▇▇▇▇▇, son of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇▇▇▇▇ Apartments, A Wing, Flat ▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, wife of ▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇▇▇▇▇ Apartments, A Wing, Flat ▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (9) | RAHUL ▇▇▇▇▇▇ ▇▇▇▇, son of ▇▇▇▇▇▇ ▇. ▇▇▇▇, residing at Lanuvilla, B-2&3, ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, wife of ▇▇▇▇▇▇ ▇. ▇▇▇▇, residing at Lanuvilla, ▇-▇&▇, ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and ARUNA ▇▇▇▇▇ ▇▇▇▇, wife of Rahul ▇▇▇▇▇▇ ▇▇▇▇, residing at Lanuvilla, B-2&3, ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (10) | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, son of ▇▇▇▇▇ ▇▇▇▇▇, residing at 902, Crescent Heights, ▇. ▇. ▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, wife of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, residing at 902, Crescent Heights, ▇. ▇. ▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
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| (11) | ▇▇▇▇▇ ▇▇▇▇▇▇, wife of ▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ Road, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, son of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (12) | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, son of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Khade, residing at ▇/ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ (▇), ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (13) | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, son of ▇.▇. ▇▇▇▇▇▇, residing at A ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (14) | VIDYA ▇. ▇▇▇▇▇▇▇▇▇, wife of Satya ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, residing at Flat ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (15) | ▇▇▇▇▇▇ ▇▇▇▇▇, son of ▇▇▇▇▇ ▇▇▇▇▇▇▇ GODSE, residing at 132 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (16) | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, wife of Vishal ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ residing at 14A1, Chandralayam Building, Postal Colony Road, Sarvodaya Estate, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (17) | KIRAN JAGANNATH NAYAK, on of Jagannath ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ residing at Krishna Kunj, Opposite ▇▇▇▇▇▇ Talkies, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (18) | MAHENDRA ▇▇▇▇▇▇▇ ▇▇▇▇▇, son of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ residing at ▇/▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (19) | ▇▇▇▇▇ ▇▇▇▇▇, son of Eyonees AUGUSTINE, residing at 3B/204,Green ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; |
| (20) | INDIAGAMES LIMITED, a company incorporated under the provisions of the Companies Act, 1956 of India, whose registered office at ▇/▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Mumbai 400 071, India (“Company”); and |
| (21) | ▇▇▇ ONLINE GAMES LIMITED, a company duly incorporated and existing under the laws of Mauritius, whose registered office is at 4th Floor, Les Cascades, ▇▇▇▇▇ ▇▇▇▇▇▇ Street, Port Louis, Mauritius (“Investor”). |
(The parties to this Agreement (collectively, “Parties” and individually, “Party”) set out in (1) to (19) above are collectively referred to as the “Vendors”.)
WHEREAS:
| (A) | The Parties entered into a share purchase and subscription agreement dated 17 December 2004 in respect of, among other things, the sale and purchase of 386,833 shares of Rupee 10 each in the capital of the Company, all of which are issued, fully paid-up and are beneficially owned by the Vendors (“Sale and Subscription Agreement”). |
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| (B) | The Parties agree to amend and supplement the terms and conditions set out in the Sale and Subscription Agreement upon the terms and subject to the conditions as hereinafter set out. |
NOW IT IS HEREBY AGREED as follows:
| 1. | Unless the context requires otherwise, words and expressions defined in the Sale and Subscription Agreement shall have the same meaning when used herein. |
| 2. | The Parties hereby acknowledge that references to IL&FS Investment Managers Limited in the Sale and Subscription Agreement actually refer to ▇▇▇▇ FUND TRUSTEE COMPANY LIMITED, a company incorporated under the Companies Act, 1956 and having its registered office at USI Complex, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, which is represented by IL&FS Investment Managers Limited. |
| 3. | The definition of “Long Stop Date” in article 1.1 of the Sale and Subscription Agreement is hereby amended to read as follows: |
“Long Stop Date” shall have the meaning ascribed thereto in Article 4.3.1;”
| 4. | (a) | Notwithstanding anything to the contrary set out in articles 2.4, 6.1.3(a)(i)(1) and 6.1.4 of the Sale and Subscription Agreement, the Investor shall pay the Sale Consideration on or before the Sale Closing Date in the following manner: | ||||
| (i) | a sum of US$13,431,739 of the Sale Consideration (“Initial Consideration”) shall be paid to the Escrow Agent upon the terms and subject to the conditions set out in the Escrow Agreement; and | |||||
| (ii) | the balance of the Sale Consideration (being a sum of US$300,000) (“Escrow Amount”) shall be paid on behalf of the Founder, Infinity and IL&FS (“Escrow Vendors”) into the Escrow Account pursuant to article 7.2.1 of the Sale and Subscription Agreement (as amended under this Agreement) and, forthwith thereafter, the Investor shall deliver or caused to be delivered to the Escrow Vendors a certified true copy of the relevant bank remittance slip evidencing that the Escrow Amount has been so deposited in the Escrow Agreement. | |||||
| Notwithstanding anything contained in this Agreement but subject to article 7.2 of the Sale and Subscription Agreement (as amended under this Agreement), none of the Escrow Vendors’ rights, titles and interests in and to the Escrow Amount shall vest until the date falling 24 months after the Subscription Closing Date. | ||||||
| (b) | References to the “Sale Consideration” in articles 6.1.3(a)(i)(1) and 6.1.4 of the Sale and Subscription Agreement shall be construed as references to the “Initial Consideration”. | |||||
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| (c) | The payment by the Investor of the Escrow Amount into the Escrow Account pursuant to clause 4(a)(ii) of this Agreement shall be an absolute discharge of the Escrow Vendors’ obligations to pay the Escrow Amount into the Escrow Account under article 7.2.1 of the Sale and Subscription Agreement (as amended under this Agreement). |
| (c) | Articles 7.2.1, and 7.2.2(a), (b) and (d) of the Sale and Subscription Agreement are hereby amended to read as follows: |
| “7.2.1 | By way of security for the liability of the Founder under the Tax Warranties, on the Sale Closing Date, the Escrow Vendors shall pay a sum equal to the Escrow Amount or cause the Escrow Amount to be paid into a separately designated interest-bearing deposit account with Hongkong and Shanghai Banking Corporation Limited in Hong Kong (or such other bank as the Investor and the Founder may agree) (“Escrow Account”), which account shall be free from any lien, charge, encumbrance, set-off or counterclaim. |
| 7.2.2 | The Escrow Account shall be operated as follows: |
| (a) | the Escrow Account shall be in the name of the Investor and shall be designated as “Indiagames Escrow Account”. The amount for the time being standing to its credit (including the amount of interest credited thereto) is hereinafter referred to as the “Deposit”; |
| (b) | subject to any order or decree of any court of competent jurisdiction, no payment shall be made out of the Escrow Account except in accordance with the bank mandate in relation to the Escrow Account which shall require the signatures of at least one of the authorised signatories of the Escrow Vendors and at least one of the authorised signatories of the Investor; |
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| (d) | subject to Articles 7.2.2(c) and 7.2.2(e), the Deposit (excluding, for this purpose, any sum retained pursuant to Article 7.2.2(e)) shall be paid to the Escrow Vendors in the following proportions on the date falling 24 months after the Subscription Closing Date (“Expiry Date”) (without further authority on the part of the Investor) in such manner to be notified by each of the Escrow Vendors in writing at least 5 Business Days prior to the Expiry Date or, failing such notices, the entire amount of the Deposit shall be paid to the Founder: |
| The Founder: |
13.84 | % | |
| Infinity: |
50.26 | % | |
| IL&FS: |
35.90 | %” |
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| 5. | The date by which the Subscription Closing shall take place (as specified in article 6.2.1 of the Sale and Subscription Agreement) shall be deferred to 31 March 2005 and article 6.2.1 of the Sale and Subscription Agreement is hereby amended to read as follows: |
| “6.2.1 | The Subscription Closing shall take place on or before 31 March 2005 and on such Business Day as specified in a written notice to be given by the Investor to the Company (“Subscription Closing Date”).” |
| 6. | The Parties hereby acknowledge and agree that the number of Shares to be sold by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AIL to the Investor under the Sale and Subscription Agreement is 1,941 Shares and schedule 1 to the Sale and Subscription Agreement shall be amended accordingly. |
| 7. | This Agreement is supplemental to and amends the Sale and Subscription Agreement and, save as expressly provided herein, all provisions in the Sale and Subscription Agreement shall remain in full force and effect. |
| 8. | If any provision of the Sale and Subscription Agreement is inconsistent with the changes contemplated hereunder or provided herein, the provisions of this Agreement shall prevail to the extent contemplated hereunder. |
| 9. | All references in the Sale and Subscription Agreement to “this Agreement”, “hereunder” and “herein” and any other cognate expressions shall be construed as references to the Sale and Subscription Agreement as amended under this Agreement, or as otherwise amended from time to time. |
| 10. | This Agreement shall be governed by and construed in accordance with the laws of India. |
| 11. | Any dispute, controversy or claim arising from or in connection with this Agreement (or the breach, termination or invalidity hereof) shall be submitted to the Singapore International Arbitration Centre for arbitration in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. Any such arbitration shall be: |
| (a) | proceeded in English; and |
| (b) | presided by three arbitrators, of which one shall be appointed by the Investor, one by the Vendors and the Company and the third arbitrator jointly by the two arbitrators appointed by the Parties. |
Any arbitral judgments made in accordance with this provision shall be conclusive and binding on the Parties.
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IN WITNESS WHEREOF this Agreement has been executed on the day and year first above written.
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| Signed by |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AIL |
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| Signed by |
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| KIRAN JAGANNATH NAYAK |
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| Signed by |
| MAHENDRA ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Signed for and on behalf of |
| INFINITY TECHNOLOGY TRUSTEE PRIVATE LIMITED |
| By: |
| Title: |
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| Signed for and on behalf of |
| ▇▇▇▇ FUND TRUSTEE COMPANY LIMITED represented by |
| IL&FS INVESTMENT MANAGERS LIMITED |
| By: |
| Title: |
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| Signed by |
| ▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| RAHUL ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and ARUNA ▇▇▇▇▇ ▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Signed for and on behalf of |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| By: ▇▇▇▇▇ ▇▇▇▇ as his/her lawful attorney |
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| Signed for by |
| VIDYA ▇. ▇▇▇▇▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇ ▇▇▇▇▇ |
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| Signed by |
| ▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Signed for and on behalf of |
| INDIAGAMES LIMITED |
| By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Title: Director |
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| Signed for and on behalf of |
| ▇▇▇ ONLINE GAMES LIMITED |
| By: |
| Title: |
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