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SHARE PURCHASE
AGREEMENT
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BETWEEN
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Clenergen India
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And
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Enkem Engineers Private
Limited
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SHARE PURCHASE
AGREEMENT
THIS
AGREEMENT is executed on
this 12 th
day of December 2009 by and
between:
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[
Clenergen India Private Limite , a company incorporated under the provisions of
the Companies Act, with its registered office at 36
A, Cathedral Garden Road, Chennai 600 034 (" Clenergen ")
(hereinafter referred to as the " Purchaser ", which
expression shall unless repugnant to the context thereof be deemed
to mean and include its successors in business and assigns,
respectively);
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Enkem
Engineers Private Limited , a company incorporated under the provisions of
the Companies Act with its registered office at _No.
824, Poonnamalleee_High Road, Chennai 600 010_ (" Enkem ")
and , ( hereinafter referred to as the "
Seller ", which expression shall unless repugnant to the
context thereof be deemed to mean and include their successors in
business and assigns, respectively);
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United Bio
Fuels Private Limited a company incorporated under the provisions
of the Companies Act, with its registered office at 824,
Poonnamallee High Road, Chennai 600 010 (hereinafter referred to as
the " Company " which expression shall unless repugnant to
the context thereof be deemed to mean and include its successors in
business and permitted assigns) as the confirming party to this
Agreement.
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The Seller and
the Purchaser are individually referred to as a " Party
"
WHEREAS:
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The Company is
engaged in the business of [ power generation through
biodegradable resources such as poultry litter
.]
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The Company has
at the date hereof, an authorised share capital
of 9000000 equity shares of Rs. 10
each aggregating to Rs. 90 Milllions and that
the Seller own33.5%of the fully paid up subscribed share capital of
the Company on a Fully Diluted Basis aggregating to 7320564 equity
shares of Rs. 10 each (collectively the " Shares
").
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It is the
intention of the Parties that upon the consummation of the sale and
purchase of the shares pursuant to this Agreement, the Purchaser
shall own the entire issued and subscribed share capital of the
Company, together with all the rights, economic value and benefits
pertaining thereto.
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The Seller has
agreed to sell to the Purchaser, and the Purchaser has agreed to
purchase from the Seller the shareholding in the Company, for the
Purchase Consideration (as defined hereunder) in accordance with
the terms and conditions set forth in this Agreement (" Share
Purchase ")
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NOW
THEREFORE IN CONSIDERATION OF THE MUTUAL PROMISES SET OUT BELOW,
THE PARTIES AGREE AS FOLLOWS:
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1.
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DEFINITIONS AND INTERPRETATION
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The following words and expressions shall,
unless the context otherwise requires, have the meanings set out
below:
" Accounts " means the audited financial
statements of the Company comprising the balance sheet of the
Company, the consolidated balance sheet, profit and loss account
and cash flow statement, together with the notes thereon,
directors' report and auditors' certificate, as at and for the
financial period ended on the Accounts Date;
" Accounts Date " means
31 March, 2009
" Affiliate " means any entity that
controls or is controlled by, directly or indirectly, or is under
common control of a Party, where "control" and "controlled by"
means the possession of the power to influence the management and
policies of such entity, whether through the ownership of voting
stock of such entity, by contract or otherwise;
" Agreement " means this share purchase
agreement including all Schedules;
" Articles " means the
articles of association of the Company;
" Assets " means the assets/properties of
the Company or any part(s) thereof and "Asset" means any one of
them
" Board of Directors " shall mean the
board of directors of the Company;
"
Closing " means the of the Share Purchase in
accordance with Clause 6 and the recording of the Purchasers as the
registered holders of the Shares in the register of members of the
Company;
" Closing
Date " means the date on which Closing takes place which shall
be on the _14 th December 2009 Business Day following the date on
which the Seller notify the Purchaser of the fulfilment by the
Seller of its obligations in accordance with Clause 4 or such other
date as may be notified to the Purchaser by the Seller;
"
Company " shall have the meaning ascribed to it in the
preamble of this Agreement;
" Companies
Act " means the Companies Act, 1956;
" Conditions Precedent " shall have the
meaning ascribed to it in Clause 4.1;
" Disclosure Schedule " shall have the
meaning ascribed to it in Clause 7.7;
" Encumbrance " means any mortgage,
charge (whether fixed or floating), pledge, lien, security interest
or other third party right or interest (legal or equitable) over or
in respect of the relevant Asset, security or right including the
Shares;
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(i)
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the audited balance sheet as of
March 31, 2009 , and the
related statements of income, cash flow and other
information that are more particularly set out in Schedule
III ;
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" Government Entity " means and includes
central/federal, state and local authorities to which the Parties
are subject;
" Interim Period " means the period
between the date of this Agreement and the earlier of the date of
termination of this Agreement and the Closing Date;
" Long Stop Date " means December 14 th
2009 or such other date decided exclusively by the
Purchasers;
" Material Adverse Effect " means any
change, event or effect other than in the ordinary course of
business and consistent with past practice, that is, likely to be
materially adverse to the business, assets (including intangible
assets), liabilities, financial condition, property prospects or
results of operation of the Company taken as a whole.
" Memorandum " means the memorandum of
association of the Company;
" Purchase Consideration " shall have the
meaning ascribed to it in Clause 3.1;
" RBI " means the Reserve Bank of
India;
" Rs. " or " Rupees "
means the lawful currency of India;
" Share Purchase " shall have the meaning
ascribed to it in Recital D;
" Shares " means
909,250 unpledged equity shares of Rs. 10 each of the
Company, issued and held by the Seller, constituting the
shareholding of the Seller in the Company, including all
legal and beneficial interest in the Shares and equity shares held
by the financial investors who have confirmed the
terms laid down in the Offer Letter issued by Clenergen
to the Company which would along with pledged shares
together with the Seller’s Shareholding encompass 100% of the
issued and paid up capital of the Company
" Tax " shall means (a) any and all
taxes, assessments and other charges, duties, impositions and
similar liabilities imposed by any Government Entity, including
taxes based upon or measured by gross receipts, income, profits,
sales and value added, withholding, payroll, excise and property
taxes, together with all interest, penalties and additions imposed
with respect to such amounts; (b) any liability for the
payment of any amounts by the Company as a result of being a member
of an affiliated, consolidated, combined or unitary group for any
period; and (c) any liability for the payment of any amounts
by the Company as a result of any express obligation to indemnify
any other Person or as a result of any obligation under any
agreement or arrangement with any other Person with respect to such
amounts and including any liability for Taxes of a predecessor
entity; and
" Warranties " means the representations,
warranties, covenants and undertakings set out in this Agreement
and particularly in Clause 7 and Schedule IV .
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In this
Agreement unless the context otherwise requires:
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references to
any statute or statutory provision or order or regulation made
there under shall include that statute, provision, order or
regulation as amended, modified, re-enacted or replaced from time
to time whether before or after the date hereof;
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headings to
Clauses are for information only and shall not form part of the
operative provisions of this Agreement and shall not be taken into
consideration in its interpretation or construction;
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references to
Recitals, Clauses or Schedules are, unless the context otherwise
requires, to recitals to, clauses of or schedules to this
Agreement;
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unless the
context otherwise requires, reference to one gender includes a
reference to the other, words importing the singular include the
plural and vice versa;
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references to
the words "include" or "including" shall be construed as being
suffixed by the words "without limitation";
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a reference to
a day, month or year is relevant to a day, month or year in
accordance with the Gregorian calendar; unless otherwise specified
in this Agreement;
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a reference to
an agreement, deed, instrument or other document include the same
as amended, novated, supplemented, varied or replaced from time to
time;
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the expression
"writing" or "written" shall include communications
by notice, telex, telegram, facsimile (fax) and letter;
and
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Unless the
context otherwise requires, reference to one gender includes a
reference to the other, words importing the singular include the
plural and vice versa
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The obligations
and liabilities of the Sellers under this Agreement shall be joint
and several.
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2.1
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In accordance with and subject to the terms of
this Agreement, the Seller shall sell, transfer, convey and the
Purchasers shall purchase the Shares from the Seller, on and with
effect from the Closing Date, free from all Encumbrances except
those ____ of Equity Shares which are pledged with IREDA and
together with all accrued benefits and attached rights and all
dividends declared after the Accounts Date in respect of the
Shares. The Seller shall ensure and take all necessary steps to
have the pledged shares transferred to the Sellers herein upon
closure of the loan outstanding to IREDA for a consideration of Re.
1/-
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The
shareholding of the Company after successful consummation of the
Closing,and considering the pledged shares are subsequently
transferred after closing date by IREDA shall be held by the
Purchaser herein.
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In
consideration for the sale and transfer of the Shares by the Seller
as set out in Clause 2, the Purchasers shall pay a total
consideration of Rs. 7.5 Millions (" Purchase Consideration
") to the Seller and to the other financial shareholders, details
of which are set out in Schedule II (The amounts are already
placed with ABN Amro Bank N.V., Harrington Road, Chennai
600031. The Purchasers hereby agree to pay a
sum not exceeding Rs. 70 Millions towards the outstanding loans
including interest and other charges in respect of the sums due to
IREDA On closing date. The Purchasers shall also make a
payment of Rs. 5 Millions to the Seller herein who undertakes to
pay off all the current and other liabilities of the Company
besides the sums due to IREDA. Any further liability
till the date of execution of this agreement shall be to the
account of the Seller.
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The Purchasers
shall be deemed to have fulfilled their obligations under this
Clause 3 once the Purchase Consideration has been transferred or
remitted to the respective accounts of the Seller in accordance
with Clause 6.
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CONDITIONS
PRECEDENT TO CLOSING
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The Purchasers
obligation to purchase the Shares and remit the Purchase
Consideration in accordance with Clause 6 is subject to the
fulfilment on or prior to the Long Stop Date, of each of the
following conditions any one or part of which may be waived in
writing exclusively by the Purchasers, and the Sellers shall, and
where applicable, shall cause the Company to satisfy the following
conditions (" Conditions "):
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The Sellers and
the Purchasers shall have obtained all approvals as stipulated
in Schedule I--which are required in connection with the
execution and delivery of the Agreement and consummation of the
transactions contemplated by this Agreement and the certified
copies of the same shall have been delivered to each of the
Purchaser.
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All loan
balances outstanding to IREDA including overdue balances and
interest/ overdue interest have been settled or approvals from
IREDA shall have been obtained by the Seller and as part of the
overall consideration for acquisition of the Company, the Purchases
shall provide a sum not exceeding Rs. 70Millions towards the One
Time Settlement relating to the loan from IREDA.
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The Seller
shall have obtained written resignation letters
from P..Subramani & Peter Stepany , as
directors of the Company effective as at the end of the Closing
Date.
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The Company
providing the Purchasers with certified true copies of the extract
of the resolutions passed in a meeting of its board of directors on
closing date:
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agreeing to
effect the transfer of the Shares upon the duly executed and
stamped share transfer forms along with the original share
certificates being delivered to it; and
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approving the
Company's execution of this Agreement and conferring authority on
MrP.Subramani the Managing Director of the Company, to
sign and duly execute this Agreement.
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The Company shall undertake and provide an
undertaking in the format mutually agreed by all the parties to the
effect that all legal requirements in respect of its allotment of
shares to the shareholders is in order and further as a token of
the undertaking, authorizes the purchasers to withhold a sum of Rs.
0.5 Millions out of the 5 Millions payable to the Company/ Enkem
for a period of 120 days from the date of execution of this
agreement . Upon the completion of 120 days as
aforementioned, the said sum net of any outflow in respect of
matters relating to allotment of shares shall be released by the
purchaser to the seller herein.
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Copy of a
certificate to be signed on the Closing Date by Seller, to the
effect that as of the Closing Date the Company and the Sellers have
performed and complied in all material respects with all covenants
and obligations under this Agreement as necessarily required and
agreed to be performed and complied with by such Party as of the
Closing Date; and
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The Sellers
shall procure that the Company performs the following corporate,
regulatory and other actions till the Closing Date:
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Maintenance and
updation of all statutory registers required to be maintained under
the Companies Act;
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Undertaking all
statutory filings as may be required under the Companies
Act.
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Other than such
Conditions as are waived by the Purchasers, the Sellers shall, by
the Long Stop Date notify the Purchaser, that all the Conditions
under Clause 4.2, and 4.3 have been satisfied.
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If all the
Conditions have been satisfactorily fulfilled or waived by the Long
Stop Date, the Closing shall take place on the Closing Date in
accordance with Clause 6.
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If all the
Conditions have not been satisfactorily fulfilled or waived by the
Long Stop Date, the respective obligations of the Parties shall
cease and the Purchasers may in their sole discretion terminate
this Agreement and except in relation to any breach of any
provision of this Agreement prior thereto no Party shall have any
claim against any other Party.
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5.1
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Conduct of Business of the
Company
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During the Interim Period, the Sellers agree to
conduct the business of the Company in a diligent manner and in
accordance with sound and prudent business practices. During the
Interim Period, the Sellers shall, within 3 Business Days promptly
notify each of the Purchasers of: (a) any event,
occurrence or emergency not in the ordinary course of business of
the Company; or (b) any event which could have a materially
negative effect on the financial condition or the operations of the
Company; or (c) any matter or thing which may or has come to the
knowledge of the Sellers and which is inconsistent with any of the
representations and warranties made by the Sellers under this
Agreement or is likely to affect the judgement of each of the
Purchaser. Except as expressly contemplated by this
Agreement, the Sellers shall ensure that the Company shall not,
without the prior written consent of the Purchaser during the offer
validity period :
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(a)
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Undertake any transaction except in the ordinary
course of business as conducted on that date and consistent with
past practices;
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(b)
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Make any modifications, amendments or changes to
its articles and memorandum of association;
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(c)
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Undertake any expenditure, transaction or
commitment
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(d)
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Adopt or make changes in any accounting method
in respect of taxes, agreement or settlement of any claim or
assessment in respect of taxes;
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(e)
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Issue or authorize issuance of any other
securities in respect of, in lieu of or in substitution for shares
in the Company;
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(f)
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sell, lease, license or
otherwise dispose of any of the Assets of the Company,
including the sale of any accounts receivable of the Company or its
Subsidiary, or any creation of any security interest in such assets
or properties, in excess of monetary limits which are equivalent to
the amount in Clause 5.1(c);
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(g)
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Make any loan to any person, or purchase any
debt securities of any person in excess of the monetary limits
which are equivalent to the amount in Clause 5.1(c);
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(h)
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waive or release any right or claim for an
amount equivalent to the amount in Clause 5.1(c), including any
waiver, release or other compromise of any account receivable of
the Company;
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(i)
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Commence or
settle any lawsuit;
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(j)
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Sell, lease, license or transfer to any person
any intellectual property rights of the Company or enter into any
transaction relating to such rights in excess of monetary limits
which are equivalent to the amount in Clause 5.1(c);
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(k)
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Grant any
sublease of any leased property of the Company;
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(l)
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agree to acquire by merging or consolidating
with, or by purchasing Assets or equity securities of, any business
or corporation, partnership, association or other business
organization or division thereof, or other acquisition or agree to
acquire any assets or any equity securities that are material,
individually or in the aggregate, to the business of the
Company;
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(m)
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adopt or amend any Company employee plan,
execute or amend any employee agreement, or pay or agree to pay any
bonus or special remuneration to any director or employee, or
increase or modify the salaries, wage rates or other compensation
(including any equity based compensation) of any
employee;
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(n)
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increase the salaries of employees nor provide
any extraordinary employment benefits to the employees of the
Company without prior written consent of the Purchaser
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(o)
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promote or effect similar change to the
employment status or title of any employee;
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(p)
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alter any interest in a subsidiary or any
corporation, association, joint venture, partnership or business
entity in which the Company directly or through each other holds
any interest which may amount to a Material Adverse Effect;
or
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(q)
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agree to do any of the things described in the
preceding sub-clauses of this Clause 5.1
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5.2
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Access to Information
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The Sellers shall, during the Interim Period,
afford the Purchaser and its representatives, as notified, access
to all of the properties, books, contracts and records of the
Company, all other information concerning the Company as the
Purchaser may request, and information relating to all
employees of the Company. All information disclosed by
the Company to the Purchasers and/or their representatives,
pursuant to this Clause 5.2 shall be provided on a strictly
confidential basis and shall be held in trust by the Purchasers
and/or their representatives and shall be kept confidential by the
Purchasers and/or their representatives except the following
information which:
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(a)
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is required to be disclosed by, under or
pursuant to any law in force or pursuant to any order, decree,
judgment, award, etc., of any competent court, tribunal, board,
government or statutory authority, etc.;
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(b)
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is public knowledge or which subsequently
becomes public knowledge, other than by way of a breach of the
terms of this Agreement;
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(c)
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is available to the Purchaser and/or its
representatives prior to its disclosure by the Company under the
terms of this Agreement or which becomes known to the Purchaser
and/or its representatives prior to or subsequent to such
disclosure without similar restrictions from a source other than
the Company, as evidenced by records;
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(d)
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The Company
agrees in writing may be disclosed; or
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(e)
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is or becomes available in writing to the
Purchaser from sources which to the Purchaser's knowledge are under
no obligation of confidentiality to the Company.
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Subject to the terms of this Agreement, Closing
shall take place at a mutually agreed location in
Chennai on the Closing Date and the
following transactions shall deemed to be consummated
simultaneously:
The Sellers,
shall hand over the originals of the documents mentioned in Clause
4.1 (g), (h) and (i) to the Purchaser; and
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6.1.2
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Execution of share transfer
documents
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Enkem shall execute and deliver to [ the
relevant Purchaser ] necessary forms and documents
including Form FC-TRS, consent letters, undertakings, etc., in
accordance with Foreign Exchange Management ACT
The Purchaser shall file the duly completed Form
FC-TRS together with all relevant documents after closing
date.
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6.1.3
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Share
transfer forms
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The Seller shall execute and deliver to the
Purchasers duly executed and valid share transfer forms and
original share certificates in respect of the Shares free and clear
of all Encumbrances.
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6.1.4
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Purchase Consideration
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Purchaser shall cause the remittance of their
respective share of the Purchase Consideration to the bank accounts
of the Seller in such proportions and in accordance with
the bank account details stated in the Schedule V
.on closing date
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6.1.5
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Meeting of the Board of Directors
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The Seller shall cause the Company to convene a
meeting of the Board of Directors on the date of payment
of the purchase consideration to:
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(a)
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approve the transfer of the Shares in favour of
the Purchaser and to duly endorse and deliver original share
certificates for the Shares evidencing the Purchasers as the lawful
and beneficial owners of the Shares;
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(b)
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enter the name of the Purchasers\as members in
the register of members maintained by the Company in accordance
with the requirements of the Act;
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(c)
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approve the appointment of Mark Quinn and
Abhilash Kamti nominees of Purchaser as additional directors of the
Company effective as of the Closing Date;
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(d)
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accept the resignations of all the directors and
additional directors (except the nominees of the Purchasers
appointed in accordance with 6.1.5 (c) above), of the Company with
effect from the end of the Closing Date;
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(e)
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revoke all mandates to bankers existing as on
the Closing Date, and granting authority in favour of such persons
as the Purchasers may nominate to operate the bank accounts
thereof;
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(f)
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revoke all power of attorneys issued by the
Company and existing as on the Closing Date; and
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7.1
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The Seller are the holders of 33.5% the issued
share capital of the Company, and are therefore competent to give
Warranties on their own behalf as well as in respect of the Company
as set out in Schedule IV .
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7.2
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The Seller hereby represent, warrant, covenant
and undertake to the Purchasers on their behalf and on behalf of
the Company (so as to bind the Seller and their respective legal
representatives, and assigns) as follows:
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(a)
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All of the Shares are fully paid, or properly
credited as fully paid, and have been validly issued to the all the
existing shareholders of the company, whose details are set forth
in Schedule II to this Agreement.
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(b)
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The Seller is the absolute legal and beneficial
owners of the shares and 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 a legal, valid and binding
obligation, enforceable against them in accordance with its
terms;
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(c)
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The Shares owned by the Seller are free and
clear of all Encumbrances (excluding those pledged to IREDA.
)
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(d)
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Except for the transaction contemplated by this
Agreement there is no subscription, option, warrant, call-right,
agreement or commitment outstanding in relation to the sale or
transfer of the Shares;
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(e)
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The Seller has not entered into any contracts,
arrangements or engagements with any third party(ie) or done any
acts on behalf of the Company which may at a later stage lead to
any material liabilities for the Company other than the acts done
by it in the usual and ordinary course of business;
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(f)
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The transfer of the unpledged Shares
to the Purchaser hereunder will convey to
the Purchaser good and marketable title to the Shares,
free and clear of all pledges, security interests, options,
equities, liens, charges, Encumbrances, claims or other third party
rights (including rights of pre emption) whatsoever;
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(g)
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All claims/ penalties if any, claimed by
creditors including related parties of the Company have been
settled as at the Closing Date and the relevant no due certificates
have been obtained; The Seller shall provide an undertaking to the
effect that on the payment of Rs. 5 Millions, all liabilities of
the Company besides the sums due to IREDA shall stand extinguished
and the seller indemnifies the Purchasers and the Company from any
statutory or non statutory liability or financial obligation
pertaining to the period upto the date of transfer of shares to the
purchasers.
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(h)
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There is no funding commitment to AHIMSA
Biofuels except a sum of Rs. 4,500,000 paid
in 2006-07;
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(i)
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The amounts disclosed as unabsorbed depreciation
available for carry forward are complete and accurate;
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Neither the execution and delivery of this
Agreement by the Seller nor the consummation by the Seller of the
transactions contemplated hereby will violate, conflict with or
result in the breach of any of the terms, conditions or provisions
of the memorandum and articles of association of the Company or any
agreement to which the Company or the Seller is a party or any law,
regulation, order, ruling, decree, judgment, arbitration award or
stipulation to which the Company or the Sellers are subject, or
constitute a default there under which would result in the creation
or imposition of any lien, charge, Encumbrance or other third party
interest there under upon the Shares.
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(n)
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The Financials are true and fair and in
accordance with the Accounting Standards prescribed by the
Institute of Chartered Accountants of India and have been prepared
on a consistent basis throughout the periods indicated and
consistent with each other. The Financials present fairly the
Company's consolidated financial condition, operating results and
cash flows as of the dates and during the periods indicated
therein.
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7.4
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Without restricting the rights of the Purchaser
or the ability of the Purchaser to claim damages on any basis
available to it in the event that any of the Warranties prove to be
untrue or misleading or are breached (as the case may be) the
Seller shall pay to the Purchaser on demand the amount as set out
under Clause 8 of this Agreement together with all costs and
expenses incurred by the Purchaser as a result of such
breach.
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7.5
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Each of the Warranties shall be construed as a
separate representation, warranty, covenant or undertaking (as the
case may be) and (save as expressly provided to the contrary) shall
not be limited by the terms of any of the other Warranties or by
any other term of this Agreement.
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7.6
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The Warranties are only qualified by the facts
and circumstances fairly, specifically and accurately disclosed in
the disclosure schedule delivered by the Company and the Sellers to
the Purchasers concurrently with the execution of this Agreement,
attached as Schedule VI. ("Disclosure
Schedule")
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7.7
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Unless any information or fact is disclosed in
the Disclosure Schedule, the Seller shall not invoke any
Purchaser's knowledge (actual, constructive or imputed) of such
fact or information, which might make the Warranties untrue,
inaccurate or misleading.
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7.8
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The Seller acknowledge and confirm that the
Purchaser has entered into this Agreement based on the Warranties,
and the correctness of all the information provided by the Sellers
to the Purchasers.
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7.9
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The Seller shall give to the Purchasers and its
representatives both before and after Closing all such information
and documentation relating to the Company as the Purchaser shall
reasonably require enabling it to satisfy itself as to the accuracy
and observance of the Warranties.
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7.10
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The Seller agree and undertake not to
do or cause to be done any act or thing between the date of this
Agreement and the Closing Date which would result the Warranties
being rendered completely or partially untrue or
incorrect.
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8.1
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Right of Indemnification
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The Seller ("Indemnifying Party") shall
indemnify, defend and hold harmless the Purchasers, their
Affiliates, shareholders, directors, officers, employees,
representatives, agents, contractors or licensees (each an
"Indemnified Party" and together the "Indemnified Parties"), from
and against any and all suits, sanctions, legal proceedings,
claims, assessments, judgments, damages, penalties, fines,
liabilities, demands, reasonable out-of-pocket expenses of whatever
kind and losses incurred or sustained by the Indemnified Parties as
a result of, arising from, or in connection with, or
relating to, directly or indirectly: (a) a breach of
representations and warranties made by the Indemnifying Party under
this Agreement; and/or (b) the non-performance (in whole or in
part) by the Indemnifying Party of any of its covenants,
obligations or undertakings contained in this Agreement.
Provided however that, neither Party shall be
liable to the other for any indirect and/or consequential damages
as well as loss of production, loss of overheads or profits in any
manner or form arising from this Agreement.
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8.2
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Indemnification Procedure
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8.2.1
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If any Indemnified Party is entitled to
indemnification hereunder, such Indemnified Party shall as soon as
reasonably practicable give notice to the Indemnifying Party
against whom the indemnity is claimed of the losses suffered by the
Indemnified Party as provided in Clause 8.1 above and/or any claim
or of the commencement of any proceeding against the Company or the
Indemnified Party, brought by any third party with
respect
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