printer-friendly

Sample Business Contracts

Call and Put Option Agreement - Wipro Ltd., Spectramind eServices Private Ltd. and Senior Management-Shareholders of Spectramind eServices Private Ltd.

Sponsored Links

                         CALL AND PUT OPTION AGREEMENT

THIS CALL AND PUT OPTION AGREEMENT - ("AGREEMENT") is made on this the 17th day
of July, 2002

A.    ___________, son of ______________residing at ______________(hereinafter
      referred to as "OPTIONEE" which expression shall unless it be repugnant to
      the context be deemed to include his legal heirs, executors and
      administrators);

B.    WIPRO LIMITED, a company incorporated under the Companies Act ,1956,,
      having its registered office at Doddakannelli, Sarjapur Road, Bangalore
      560 035, (hereinafter referred to as "WIPRO" which expression shall unless
      it be repugnant to the context be deemed to include its successors and
      assigns); and

C.    SPECTRAMIND ESERVICES PRIVATE LIMITED, a company incorporated under the
      Companies Act ,1956,, having its registered office at 239, Okhla
      Industrial Estate Phase III, New Delhi 110020, India (hereinafter referred
      to as "COMPANY" which expression shall unless it be repugnant to the
      context be deemed to include its representatives, successors and assigns).

Each of Optionee, the Company and WIPRO shall be referred to herein as a "PARTY"
and jointly as the "PARTIES".

RECITALS

A.    The Spectramind eServices Private Limited ("COMPANY") is engaged in the
      business of remote processing activities and has set up a remote
      processing centre at Okhla, New Delhi.

B.    ChrysCapital I, LLC, Mauritius ("CHRYSCAPITAL'), Housing Development and
      Finance Corporation Limited ("HDFC"), Optionee and the Spectramind
      Limited, Bermuda had entered into a Shareholders' Agreement dated as of
      March 15, 2000 (the "OLD SHAREHOLDERS' AGREEMENT") in relation to
      investments in the Spectramind Limited, Bermuda, Spectramind Limited,
      Mauritius and the Company.

C     ChrysCapital, HDFC, Optionee, WIPRO, Spectramind Limited, Mauritius,
      Spectramind Limited, Bremuda and the Company had entered into another
      Shareholders Agreement dated as of October 18, 2001 ("PRESENT SHAREHOLDERS
      AGREEMENT") which superceded and replaced in its entirety the Old
      Shareholders Agreement.

D.    ChrysCapital, HDFC, Optionee, WIPRO, American Express Travel Related
      Services Company, Inc ("AMEX"), Spectramind Limited, Mauritius,
      Spectramind Limited, Bermuda and the Company had entered into a Modified
      Shareholders Agreement dated as of 12th February, 2002 which partly
      amended the Present Shareholders Agreement ("MODIFIED SHAREHOLDERS
      AGREEMENT").

E.    Optionee and the Company entered into a Stock Option Agreement as modified
      by a Supplemental Stock Option Agreement dated July 17, 2002, with respect
      of the grant of options to him under the employee stock option scheme of
      the Company, and pursuant thereto, Optionee is the owner of the employee
      stock options as specified in Schedule 1 ("EMPLOYEE STOCK OPTIONS").

F.    Optionee and Wipro desires to execute a Call and Put Option over the
      Option Shares


                                                                     Page 1 of 9
<PAGE>
      subject to and in accordance with the terms and conditions of this
      Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements made
herein, the Parties hereby agree as follows:

1.    DEFINITIONS

1.1   The following words and phrases, wherever used in this Agreement, shall
      have the following meanings:

      "ACQUISITION DATE" shall mean the date(s) on which the Option Shares are
      allotted to the Optionee pursuant to the exercise of the relevant Employee
      Stock Options and the Company will allot the Option Shares within three
      (3) days of such exercise as provided in the employee stock option scheme
      of the Company

      "CALL NOTICE" shall mean the notice delivered by WIPRO on Optionee
      pursuant to Clause 2.1 of this Agreement

      "CALL/PUT OPTION PERIOD" shall mean the six months following each of the
      Acquisition Date

      "CAUSE" shall have the meaning assigned to it in the Employment Agreement.

      "CONFIDENTIAL INFORMATION" means information received by the Optionee from
      any Investor or the Company or any of its subsidiaries in respect of the
      activities and affairs of the Company or any of its subsidiaries including
      the information received by the Optionee as a member on the board of
      directors on the Company or any of its subsidiaries and in respect of the
      transactions contemplated by or otherwise pursuant to this Agreement that
      is proprietary either to the Investor or the Company or any of its
      subsidiaries including information relating to the MIS, customer
      information, employees, process and systems etc., provided that such term
      does not include information that (a) was publicly known or otherwise
      known to such receiving Party prior to the time of such disclosure, (b)
      subsequently becomes publicly known through no act or omission by such
      receiving Party or any Person acting on such Party's behalf, or (c)
      otherwise becomes known to such receiving Party other than through
      disclosure by the delivering Party or any Person with a duty to keep such
      information confidential.

      "ENCUMBRANCE" means any charge, lien, equity, third party right, option,
      right of pre-emption or any other encumbrance, priority or security
      interest of whatsoever nature.

      "EQUITY SHARES" means the equity shares of Rs.10/- each of the Company

      "NOTICE DATE" shall mean the date of service of the Call Notice as per
      Clause 2.1, or the date of service of the Put Notice as per Clause 2.2.

      "EMPLOYMENT AGREEMENT" shall mean the Employment Agreement or Service
      Agreement entered into by the Optionee with the Company or any of its
      affiliates.

      "EMPLOYEE STOCK OPTIONS" shall mean the employee stock options granted to
      Optionee by the Company and as specified in Schedule 1.

      "INVESTORS" means, collectively, ChrysCapital, HDFC, WIPRO, AMEX, Mr.
      Raman Roy,


                                                                     Page 2 of 9
<PAGE>
      Spectramind Limited, Mauritius, Spectramind Limited, Bermuda, and the
      Management Team.

      "STRIKE PRICE" shall mean the Fair Market Value of the Equity Shares

      "FAIR MARKET VALUE" shall mean the value of each Equity Share based on
      enterprise value of the Company divided by 8,10,69,742 shares, being the
      number of shares of the Company on a fully diluted and as fully converted
      basis as on the date of this Agreement, as applicable for the quarter in
      which the Notice Date falls. The enterprise value will be as determined by
      an External Independent Valuer of international repute, as the case may be
      by reference to (i) liquidity, (ii) yield capabilities, (iii) book value,
      and (iv) average metrics of the top five listed global companies
      comparable in the same space in which the Company is operating. The Fair
      Market Value shall be determined initially as of April 1st 2003 and
      thereafter on at least a semi-annual basis commencing from such date.

      "OPTION SHARES" shall mean the Equity Shares issued and allotted by the
      Company to Optionee pursuant to the exercise of the Employee Stock
      Options.

      "PUT NOTICE" shall mean the notice delivered by Optionee on WIPRO pursuant
      to Clause 2.2 of this Agreement

      "SETTLEMENT DATE" shall mean the date for the transfer of the Option
      Shares not being later than seven (7) days from the relevant Notice Date.

      "SETTLEMENT PERIOD" means the period between the Notice Date and the
      Settlement Date.

      "OPTION SHARE DOCUMENTS" shall mean the original share certificates
      pertaining to the Option Shares and share transfer forms for transfer of
      the Option Shares.

2.    CALL AND PUT OPTION

2.1   At any time during the Call/Put Option Period, WIPRO shall have the option
      to purchase all or any of the Option Shares by issuing a Call Notice at
      the relevant Strike Price. The Call Notice will specify the number of
      Option Shares intended to be purchased. On the exercise of such option by
      WIPRO, Optionee shall be obliged to sell to WIPRO, on a spot delivery
      basis, the Option Shares at the relevant Strike Price, and such sale shall
      be subject to Optionee's confirmation that the Option Shares are without
      any Encumbrance. Such purchase by WIPRO of the Option Shares shall be
      completed on a spot delivery basis on the Settlement Date as contemplated
      in Section 3. It is clarified that WIPRO shall be entitled to purchase the
      Option Shares either directly or designate a nominee for this purpose.
      Provided that in respect of the Option Shares which are allotted at
      different dates, WIPRO may issue one or more Call Notices during the
      relevant Call/Put Option Period.

2.2   At any time during the Call/Put Option Period, Optionee shall have the
      option to sell all or any of the Option Shares by issuing a Put Notice at
      the relevant Strike Price. The Put Notice will specify the number of
      Option Shares intended to be sold. Upon exercise of such an option by
      Optionee, WIPRO shall be shall be obliged to purchase, on a spot delivery
      basis, the Option Shares at the relevant Strike Price, and such purchaser
      shall be subject to Optionee's confirmation that the Option Shares are
      without any Encumbrance. Such purchase by WIPRO of the Option Shares at
      the relevant Option relevant Strike Price shall be completed on a spot
      delivery basis on the Settlement Date as contemplated in Section 3. It is
      clarified that WIPRO shall be entitled to purchase the Option Shares
      either directly or designate a nominee for this purpose. Provided that in
      respect of the Option


                                                                     Page 3 of 9
<PAGE>
      Shares which are allotted at different dates, Optionee may issue one or
      more Put Notices during the relevant Call/Put Option Period. Provided
      further that, notwithstanding anything to the contrary contained in this
      Agreement, the right of the Optionee to sell all or any of the Optionee's
      Option Shares by a Put Notice under this Section 2.2 shall be available
      only in respect of the Option Shares which may be acquired by the Optionee
      pursuant to the exercise of the Employee Stock Option set out in Part 2 of
      Schedule 1.

2.3   Optionee shall be bound, upon receipt of the Call Notice or issue of the
      Put Notice, as the case may be to sell all the Option Shares at the Strike
      Price to WIPRO and undertake all necessary action in the Settlement Period
      including, but not limited to, the execution of any and all documents and
      transfer deeds required to complete such sale and transfer of the Option
      Shares for consideration received.

2.4   WIPRO shall be bound, upon issue of the Call Notice or receipt of Put
      Notice, as the case may be to purchase from the Optionee all the Option
      Shares at the Strike Price and make payment of the consideration.

2.5   The Company shall undertake all steps and actions to give effect to the
      transactions contemplated in this Agreement.

2.6   In the event Call Notice(s) are not issued in respect of all of the Option
      Shares which may be acquired by the Optionee pursuant to the exercise of
      the Employee Stock Option set out in Part 1 of Schedule 1 during the
      applicable Call/Put Option Period, then the Optionee shall not have the
      right to sell the remaining Option Shares to third party without giving to
      Wipro a right of first refusal in respect of such remaining Option Shares.

3.    COMPLETION

      Completion shall take place on the Settlement Date at the registered
      office of the Company. At the Completion, (a) Optionee shall
      simultaneously with the payment by WIPRO of an amount equal to the Strike
      Price multiplied by the number of Option Shares which are subject matter
      of the relevant Call Option or the Put Option as the case may be , deliver
      or cause to be delivered to WIPRO, or its nominee, the Share Documents,
      and do such things and execute such other documents as shall be necessary,
      or as WIPRO may reasonably request, to give effect to the sale of the
      Option Shares which are subject matter of the relevant Call Option or the
      Put Option as the case may be, and (b) WIPRO shall simultaneously with the
      delivery of the Share Documents by the Optionee, make payment to Optionee
      of an amount equal of the Strike Price multiplied by the number of Option
      Shares which are subject matter of the relevant Call Option or the Put
      Option as the case may be.

4.    REPRESENTATIONS AND WARRANTIES

4.1   REPRESENTATIONS AND WARRANTIES OF WIPRO

      WIPRO hereby represents and warrants that:

      (a)   It has full legal capacity and legal right to undertake its
            obligations provided for in this Agreement, and to execute and
            deliver this Agreement, and to perform and observe the terms and
            provisions hereof applicable to it. This Agreement constitutes the
            legal, valid and binding obligations of WIPRO enforceable against it
            in accordance with the terms hereof. The execution, delivery and
            performance of this Agreement has been duly authorized by all
            necessary actions on its part; and


                                                                     Page 4 of 9
<PAGE>
      (b)   The execution, delivery and performance of this Agreement does not
            and will not violate or exceed its legal capacity or contravene any
            provision of any applicable law, regulation, decree or order to
            which it is subject, or any contract, agreement or other instrument
            to which it is a party, or which is binding upon it or to any
            provision of any mortgage, deed, contract, agreement or other
            instrument to which it is a party, or which is binding upon it or
            attaches to any of its assets.

4.2   REPRESENTATION AND WARRANTIES OF OPTIONEE

      Optionee represents and warrants that:

      (a)   This Agreement constitutes the legal, valid and binding obligations
            of Optionee enforceable against Optionee, in accordance with the
            terms hereof.

      (b)   The execution, delivery and performance of this Agreement does not
            and will not violate or exceed Optionee's legal capacity or
            contravene any provision of any applicable law, regulation, decree
            or order to which he is subject, or any contract, agreement or other
            instrument to which Optionee is a party, or which is binding upon
            Optionee or to any provision of any mortgage, deed, contract,
            agreement or other instrument to which Optionee is a party, or which
            is binding upon Optionee or attaches to any of his assets.

5.    COVENANTS

5.1   Optionee and WIPRO undertake and agree that they shall abstain from any
      action, the object or effect of which would be to restrict and prevent the
      sale, transfer and disposal of the Option Shares under this Agreement,
      except as contemplated in this Agreement.

5.2   In the event that there is a change of law in India making the enforcement
      of this Agreement illegal in India, the Parties undertake that they shall,
      upon demand by either Party enter into a spot delivery agreement on the
      same terms as this Agreement for the purchase of the Option Shares, if the
      same is permissible under Indian law. If such spot delivery sale is not
      permissible by Indian law, the Parties agree to execute any other modified
      contract or agreement to give effect to the contemplated transactions in
      compliance with such change in law.

5.3   NON-COMPETE AND NON-SOLICITATION

      (a)   The Optionee acknowledges that in the course of his employment with
            the Company and its affiliates the Optionee will become familiar
            with the Company's and its affiliates trade secrets and with other
            confidential information concerning the Company and its affiliates
            and that Optionee's services have been and will be of special,
            unique and extraordinary value to the Company and its affiliates.
            Therefore, the Optionee agrees that, during his employment, and (i)
            in the case of termination for Cause or resignation, for two years
            thereafter, and (ii) in the case of termination by the Company and
            its affiliates without Cause, during the period in which the
            Optionee receives payments of Salary pursuant to paragraph 5(b) of
            the Employment Agreement (the "NONCOMPETE PERIOD"), Optionee shall
            not directly or indirectly own, manage, control, participate in,
            consult with, render services for, or in any manner engage in any
            business competing with the businesses of the Company or its
            subsidiaries as such businesses exist or are in process on the date
            of the termination of the Optionee's employment, within any
            geographical area in which the Company or its subsidiaries engage or
            plan to engage in such businesses.


                                                                     Page 5 of 9
<PAGE>
      (b)   During the Noncompete Period, the Optionee shall not directly or
            indirectly through another entity (i) induce or attempt to induce
            any employee of the Company or any affiliate to leave the employ of
            the Company or such affiliate, or in any way interfere with the
            relationship between the Company or any subsidiary and any employee
            thereof, or (ii) induce or attempt to induce any customer, supplier,
            licensee or other business relation of the Company or any affiliate
            to cease doing business with the Company or such affiliate, or in
            any way interfere with the relationship between any such customer,
            supplier, licensee or business relation and the Company or any
            affiliate.

      (c)   If, at the time of enforcement of this Clause 5.3, a court shall
            hold that the duration, scope or area restrictions stated herein are
            unreasonable under circumstances then existing, the parties agree
            that the maximum duration, scope or area reasonable under such
            circumstances shall be substituted for the stated duration, scope or
            area and that the court shall be allowed to revise the restrictions
            contained herein to cover the maximum period, scope and area
            permitted by law.

      (d)   In the event of the breach or a threatened breach by Optionee of any
            of the provisions of this Clause 5.3, the Company, in addition and
            supplementary to other rights and remedies existing in its favor,
            may apply to any court of law or equity of competent jurisdiction
            for specific performance and/or injunctive or other relief in order
            to enforce or prevent any violations of the provisions hereof
            (without posting a bond or other security).

5.4   RECONSTITUTION RIGHTS

      The Parties agree that in the event of any restructuring and/or
      recapitalisation of the Company or any event constituting similar effect
      including but not limited to issue of bonus shares, rights shares,
      mergers, sale, dissolution, liquidation of the Company, WIPRO and Company
      will take all such neccessary steps to protect the intent of the Parties
      set out in this Agreement and place the Optionee in the same economic
      position that it would have been, had any such aforementioned event not
      occurred or initiated.

6.    EFFECTIVE DATE AND DURATION OF OBLIGATIONS

6.1   This Agreement shall come into force on ___________.

6.2   This Agreement shall terminate upon the expiry of the Call/Put Option
      Period in respect of the last of the Option Shares which the Optionee is
      entitled to be allotted in respect of the Options specified in Schedule 1.

6.3   If a Call Notice(s) or a Put Notice shall have been served on or prior to
      the expiry of the Call/Put Option Period, this Agreement shall continue in
      force even after the periods specified in Clause 6.1, until the
      fulfillment of the Parties obligations hereunder in relation to all such
      Call Notice(s)/Put Notice(s) whereupon it shall terminate.

7.    MISCELLANEOUS

7.1   ENTIRE UNDERSTANDING

      This Agreement constitutes the entire understanding of the Parties with
      reference to the subject matter of this Agreement and supersedes any and
      all prior negotiations, correspondence, agreements, understandings, duties
      or obligations among the Parties with respect to the subject matter
      hereof.


                                                                     Page 6 of 9
<PAGE>
7.2   AMENDMENTS

      This Agreement shall not be amended, modified, altered or changed in any
      way except in a writing executed by a duly authorised representative of
      each Party. A waiver by any Party hereto of any provision of this
      Agreement or a breach thereunder shall not be deemed to constitute a
      subsequent or future waiver of the same or any other provision or a breach
      of this Agreement.

7.3   SPECIFIC PERFORMANCE

      The Parties hereby acknowledge and confirm that it is impossible to
      measure in money the damages which will accrue to a Party or to their
      heirs, personal representatives, or assigns by reason of a failure to
      perform any of the obligations under this Agreement and therefore agree
      that the terms of this Agreement shall be specifically enforceable.

      If any Party or his heirs, personal representatives, or assigns institutes
      any action or proceeding to specifically enforce the provisions hereof,
      any Party against whom such action or proceeding is brought (i) hereby
      waives the claim or defense therein that such Party or such personal
      representative has an adequate remedy at law, and (ii) hereby confirms
      that it shall not offer in any such action or proceeding the claim or
      defense that such remedy at law exists.

7.4   NOTICES

      All notices, communications and other correspondence required or permitted
      by this Agreement shall be in writing and shall be sent by (a) facsimile,
      with confirmation copy sent by registered first class airmail, (b) by
      personal delivery with acknowledgement of receipt or (c) by registered,
      first class air mail, return receipt requested and postage prepaid, to the
      following address:

      in the case of Optionee to:    At the address mentioned in the description
                                     of the Optionee on page 1.

      in the case of Wipro to:       Wipro Limited,
                                     Doddakannelli,
                                     Sarjapur Road,
                                     Bangalore 560 035

                             ATT'N:  Corporate Executive Vice President Finance
                                     FAX: (91) 80 844 0051

      All such notices, communications and correspondence shall be sent and
      deemed to have been received as follows: (i) if by facsimile, upon receipt
      of the confirmation copy; and (ii) if by personal delivery, courier or
      registered, first class airmail, upon receipt or refusal of delivery. A
      Party may change the address to which notices are to be sent by a notice
      complying herewith to that effect. All notices will be in English.

7.5   WAIVER


                                                                     Page 7 of 9
<PAGE>
      No failure or delay by either Party in exercising any right, power or
      remedy under this Agreement shall operate as a waiver thereof, nor shall
      any single or partial exercise of the same preclude any further exercise
      thereof or the exercise of any other right, power or remedy. Without
      limiting the foregoing, no waiver by either Party of any breach by the
      other of any provision hereof shall be deemed to be a waiver of any
      subsequent breach of that or any other provision hereof. If at any time
      any provision of this Agreement is or becomes illegal, invalid or
      unenforceable in any respect, the legality, validity and enforceability of
      the remaining provisions of this Agreement shall not be affected or
      impaired thereby.

7.6   EXPENSES

      Except as otherwise specifically provided for in the Agreement, each Party
      shall bear its respective expenses, costs and fees (including attorneys',
      auditors' and financing commitment fees) in connection with the
      transactions contemplated hereby, including the preparation, execution and
      delivery of this Agreement.

7.7   ARBITRATION

      If any disputes, differences, or questions arise in respect of this letter
      or the subject matter hereof, the same shall be settled by arbitration in
      accordance with the Arbitration and Conciliation Act, 1996 by a sole
      arbitrator.

      The arbitration shall take place in Bangalore and shall be conducted in
      English.

      During the arbitration, all Parties shall continue to fulfill their
      respective obligations under this Agreement except for such obligations
      and other matters which are the subject of the arbitration.

      The arbitral award shall be in writing, state the reasons for the award,
      and be final and binding on the Parties concerned. The award may include
      an award of costs, including reasonable attorneys' fees and disbursements.

7.8   TITLE, CAPTIONS AND HEADINGS

      The titles, captions and headings contained in this Agreement are inserted
      for the convenience of reference only and are not intended to affect in
      any way the construction or interpretation of this Agreement.

7.9   BINDING EFFECT

      This Agreement shall be binding upon and inure to the benefit of the
      Parties and their respective heirs, successors, permitted assigns,
      executors and administrators of the Parties hereto.

7.10  CONFIDENTIALITY

      The Seller shall maintain the confidentiality of Confidential Information
      in accordance with procedures adopted by the Seller and shall not disclose
      to any third party or use the same for any purpose whatsoever, provided
      that the Seller may deliver or disclose Confidential Information to (i)
      any Governmental authority having jurisdiction over the Seller to the
      extent required by law, or (ii) any other person to which such delivery or
      disclosure may be necessary or appropriate (A) to effect compliance with
      any Law applicable to such Party, (B) in response to any subpoena or other
      legal process, or (C) in connection with any litigation to which such
      Party is a party, provided further that, at the


                                                                     Page 8 of 9
<PAGE>
      time of such disclosure as above, its shall provide the Purchaser with
      prompt written notice thereof so that the Purchaser may seek (with the
      cooperation and reasonable efforts of the Seller) a protective order,
      confidential treatment or other appropriate remedy, and in any event shall
      furnish only that portion of the information reasonably necessary for the
      purpose at hand, and shall exercise reasonable efforts to obtain reliable
      assurance that confidential treatment will be accorded such information to
      the extent reasonably requested by the Purchaser.

IN WITNESS WHEREOF, the Parties have executed this Agreement effective the date
first mentioned above.

        SIGNED BY                                                )
        OPTIONEE BEING                                           )

        In the presence of                                       )


        SIGNED BY                                                )
        For and on behalf of                                     )
        WIPRO LIMITED                                            )

        In the presence of                                       )



        SIGNED BY                                                )
        For and on behalf of                                     )
        SPECTRAMIND ESERVICES PRIVATE LIMITED                    )

        In the presence of                                       )


                                                                     Page 9 of 9