4. Management of the company: It describes the constitution of the Board of Directors,procedure for removal and replacement of nominees, procedure for calling meetingsof Board, quorum, procedure for approval of matters, deemed consent, casualvacancies and filling the post of alternate Director and Managing Director.5. Shareholder meetings: It describes the procedure for general meeting of shareholders,notice of shareholder meetings, quorum and voting requirements.6. Transfer of equity shares: It lays down the conditions for general restriction ontransfer, rights of first refusal, change in control, event of default, government's rightto sell, Strategic Partner's right to buy, determination of fair market value, procedurefor call and put options, permitted transfers and compliance with legal requirements.7. Representations and Warranties: It describes the various representations andwarranties given by the company, the strategic partner and the government. It alsoincludes a survival clause.8. Indemnification and confidentiality: It lays down the various indemnifications givenby all the parties in case of breach of contract. It also includes a confidentiality clause.It lays down the various equitable remedies and costs in the event of a breach ofcontract.9. Miscellaneous: It includes clauses on arbitration, application of this agreement,assurances, benefit of the agreement, amendments and waivers, assignment,severability, notices, governing law and expenses.The Ministry has placed on its website ‘Sample Transaction Document’ which can be auseful guide for preparing SHA and SPA.3.2.6 Due DiligenceThe purpose of the due diligence programme is to provide the Bidder an overview of theStrategic Sale programme and a detailed information on the company's businesses. In order toenable the Bidder to obtain the required information, the programme provides data room visit.The data room is created by the Company containing all information required by theprospective bidder followed by site visit.The following is a summarised, indicative list of types of documents and information required.Financial DocumentsooooooooAll annual reports.Quarterly reports.All accountant and auditor's reports and opinions.Management financial reports, capital expenditure budgets, projections and reports forlast five years.Operating budgets, projections, and reports for last five years.Any financial information presented to GoI in last five years.Operating revenue accounts for last five years.Operations and maintenance accounts for last five years.Accounts and Investments94
oList of all bank accounts and investments, including account balances and value ofinvestments.Loan DocumentsoA chart setting forth loan amortisation and interest payments (with the company bothas borrower and, if applicable, lender).oA chart showing other debt-like obligations of the company (letter ofcredit repayment obligations, instalment sales obligations, capitalisedlease obligations).oooAll loan agreement in which the company is a borrower (together with relatedpromissory notes, security documents, and ancillary agreements).All loan agreements in which the company is a lender (together with relatedpromissory note, security documents and ancillary agreements).All documents relating to debt-like obligations of the company (letter of creditrepayment obligations, installment sales obligations, capitalised lease obligations).Equity Documentso A chart setting forth all capital contributions of the company and share issuances by thecompany; share issuance and transfer ledger.o All equity subscription agreements, option agreements, etc.Corporate Documentso Memorandum and articles of association.o Bylaws.o Minutes of shareholder and board meetings for last five years.Licenses and Permitso List of all required licenses and permits.o All licenses/permits.o All correspondence relating to revocation, modification, or non-issuance of any licenseor permit.o All laws and regulations applicable to the company (including any laws relating toenvironmental and safety matters).o All environmental and safety permits.o All tariffs applicable to the company in last five years.o All environmental and safety reports prepared in last five years.Litigationo Status report of all litigation, disputes, etc., pending or concluded in last five years.o Litigation files relating to pending matters.Employee Matters95