Stock Purchase Agreement - Sterling Commerce Inc. and Satyam Infoway Ltd.
SATYAM INFOWAY LIMITED
Maansarovar Towers
271-A, Anna Salai, Teynampet
Chennai - 600 018
India
September 14, 1999
Sterling Commerce, Inc.
4600 Lakehurst Court
Dublin, Ohio 43106
Gentlemen:
Satyam Infoway Limited, a limited liability company under the laws of
the Republic of India (the "Company"), hereby agrees with you as follows:
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SECTION 1. PURCHASE AND SALE OF EQUITY SHARES
1.1 Issue of Equity Shares
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On or before the Closing Date (as hereinafter defined), the Company
will have authorized the issuance of 481,000 of its equity shares, par value
Rs.10 per share (the "Equity Shares"), in accordance with the applicable
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provisions of the Company's Memorandum and Articles of Association and the
Companies Act, 1956 of India.
Capitalized terms used in this agreement (the "Agreement") without
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definition shall have the meanings specified in Section 5 hereof.
Each Equity Share to be purchased by you will be dated as provided in
Section 1.2 hereof.
1.2 Sale and Purchase of the Equity Shares; the Closing
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In reliance upon the representations made in Section 1.3 hereof and
subject to the terms and conditions set forth herein and in the other Documents,
the Company hereby agrees to sell to you 481,000 Equity Shares at a purchase
price equal to Five Million U.S. Dollars ($5,000,000.00). In reliance upon the
representations and warranties of the Company contained herein and in the other
Documents, and subject to the terms and conditions set forth herein and therein,
you hereby agree to purchase such Equity Shares from the Company.
The sale and purchase of the Equity Shares shall take place at a
closing (the "Closing") at the offices of the Company, as identified above, on
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September 14, 1999 or such other business day as may be agreed upon by you and
the Company (the "Closing Date"). At the
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Closing, upon receipt by the Company of the full purchase price of the Equity
Shares subscribed for hereunder by intra-bank or federal funds bank wire
transfer of same day funds to such bank account as the Company shall designate
at least two business days prior to the Closing, the Company will deliver to you
the Equity Shares to be purchased by you (in such permitted denomination or
denominations and registered in your name or the name of such nominee or
nominees (not to exceed ten (10) in number) as you may request).
If at the Closing any of the conditions to the Closing specified in
this Agreement shall not have been fulfilled to your reasonable satisfaction or
if the Closing fails to occur on or before November 13, 1999 due to no fault of
your own, you shall, at your election and notwithstanding anything to the
contrary in this Agreement, be relieved of all further obligations under this
Agreement without thereby waiving any rights you may have by reason of such
nonfulfillment or failure. Nothing in this Section 1.2 shall operate to relieve
the Company from any of its obligations under this Agreement.
You hereby waive any and all preemptive rights, as a holder of Equity
Shares, to purchase additional Equity Shares in the proposed initial public
offering in the United States of American Depositary Shares and related
transactions (the "IPO").
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1.3 Purchaser Representations; Source of Funds
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(a) You represent that you are purchasing the Equity Shares solely for
your own account and not as nominee or agent for any other person and not with a
view to, or for offer or sale in connection with, any distribution thereof
(within the meaning of the Securities Act) that would be in violation of the
securities laws of the United States of America or any state thereof or any
other jurisdiction, without prejudice, however, to your right at all times to
sell or otherwise dispose of all or any part of such Equity Shares pursuant to a
registration statement under the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act.
You further represent that you are knowledgeable, sophisticated and
experienced in business and financial matters; that you have previously invested
in restricted securities issued by private companies and fully understand the
limitations on transfer described in Section 1.3(b) hereof and the restrictions
on sales and other dispositions in this Agreement and the other Documents; that
you are knowledgeable about the Company's business; that you are able to bear
the economic risk of investment in the Equity Shares and are presently able to
afford the complete loss of such investment; that you are an "accredited
investor" as defined in Regulation D promulgated under the Securities Act; and
that you have been afforded access to information about the Company and the
Company's financial condition, results of operations, business, property,
management and prospects sufficient to enable you to evaluate your investment in
the Equity Shares, including, without limitation, financial statements as of
March 31 and June 30, 1999. You acknowledge that you have conducted your own
analysis of the Company's financial condition and other foregoing factors which
is the basis for your decision to purchase the Equity Shares.
(b) If you desire to sell or otherwise dispose of all or any part of
the Equity Shares in a transaction which invokes the jurisdiction of the United
States federal securities laws and in reliance upon an exemption from
registration under the Securities Act, if requested by the
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Company, you will deliver to the Company an opinion of counsel, reasonably
satisfactory in form and substance to the Company, that an exemption from
registration under the Securities Act is available. Upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Equity Shares (and in each
case all securities issued upon conversion thereof, in exchange therefor, or in
substitution thereof) shall bear the legend set forth in the Stockholders
Agreement.
(c) You represent that no part of the funds to be used to purchase the
Equity Shares to be purchased by you constitutes assets allocated to any trust
which contains the assets of any employee pension benefit plan with respect to
which the Company or any corporation considered an affiliate of the Company
within the meaning of Section 407(d)(7) of ERISA is a party in interest or
disqualified person. The representation made by you in the preceding sentence
is made in reliance upon your review of the list of employee pension benefit
plans provided by the Company. As used in this Section 1.3(c), the terms
"employee pension benefit plan," "separate account" and "party in interest"
shall have the meanings assigned to such terms in Section 3 of ERISA and the
terms "disqualified person" and "prohibited transaction" shall have the meanings
assigned to such terms in Section 4975 of the Code.
(d) You are a Delaware corporation, and your primary place of business
is Ohio.
1.4 Ordinary Course
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During the period from the date hereof to the Closing Date, the
Company shall conduct its business only in the ordinary course and consistent
with past practice, other than IPO.
1.5 Further Action
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During the period from the date hereof to the Closing Date, the
Company shall use its reasonable best efforts, and shall take all action
necessary or appropriate (including, without limitation, the execution of an
amendment to the Company's Articles of Association), to consummate the
transactions contemplated hereby, including obtaining all licenses, consents,
approvals or other authorizations of any governmental entity or regulatory body,
and to cause its representations and warranties contained in Section 4 hereof to
be true as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement, as if made on and as of such date.
SECTION 2. PURCHASER CLOSING CONDITIONS
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Your obligation to purchase and pay for the Equity Shares shall be
subject to the satisfaction of the following conditions on or before the Closing
Date:
2.1 Representations and Warranties True
-----------------------------------
The representations and warranties of the Company contained in Section
4 hereof qualified as to materiality shall be true, and those not so qualified
shall be true in all material
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respects, in each case at and as of the Closing Date (unless they purport to be
as of a different date), after giving effect to the transactions contemplated by
this Agreement, as if made on and as of such date.
2.2 Compliance with this Agreement
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The Company shall have performed and complied in all material respects
with all agreements, covenants and conditions contained herein, in the other
Documents and any other document contemplated hereby or thereby which are
required to be performed or complied with by the Company on or before the
Closing Date.
2.3 Officer's Certificate
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You shall have received a certificate or certificates, dated the
Closing Date and signed by the Chief Executive Officer or Chief Financial
Officer of the Company, certifying that the conditions set forth in Sections 2.1
and 2.2 hereof are satisfied on and as of such date.
2.4 Proceedings Satisfactory
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All proceedings taken in connection with the sale of the Equity
Shares, the transactions contemplated hereby, and all documents and papers
relating thereto, shall be reasonably satisfactory to you. You and your counsel
shall have received copies of such documents and papers as you or they may
reasonably request in connection therewith, all in form and substance
satisfactory to you. Any document annexed to this Agreement or any other
document contemplated by this Agreement not approved by you in writing as to
form and substance on the date this Agreement is executed shall be reasonably
satisfactory in form and substance to you.
2.5 Stockholders Agreement and Other Documents
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The Stockholders Agreement and the other Documents shall have been
entered into by the parties thereto, and you shall have received an original,
duly executed by the parties thereto, of the Stockholders Agreement. All other
agreements entered into by the Company on or prior to the Closing Date and the
certificates representing the Equity Shares shall be in form and substance
reasonably satisfactory to you, and originals or copies of such agreements shall
be provided to you.
2.6 Governmental Approvals
----------------------
The Company shall have received all Government of India and any other
approvals of any governmental or regulatory body required in connection with the
transactions contemplated by this Agreement and the other Documents.
SECTION 3. COMPANY CLOSING CONDITIONS
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The Company's obligation to issue and sell to you the Equity Shares
shall be subject to the satisfaction of the following conditions on or before
the Closing Date:
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3.1 Representations and Warranties True
-----------------------------------
Your representations and warranties contained in Section 1.3 hereof
qualified as to materiality shall be true, and those not so qualified shall be
true in all material respects, in each case at and as of the Closing Date
(unless they purport to be as of a different date), after giving effect to the
transactions contemplated by this Agreement, as if made on and as of such date.
3.2 Compliance with this Agreement
------------------------------
You shall have performed and complied in all material respects with
all agreements, covenants and conditions contained herein, in the other
Documents and any other document contemplated hereby or thereby which are
required to be performed or complied with by the Company on or before the
Closing Date.
3.3 Stockholders Agreement and Other Documents
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The Stockholders Agreement and the other Documents shall have been
entered into by the parties thereto, and the Company shall have received an
original, duly executed by the parties thereto, of the Stockholders Agreement.
3.4 Governmental Approvals
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The Company shall have received all Government of India and any other
approvals of any governmental or regulatory body required in connection with the
transactions contemplated by this Agreement and the other Documents.
SECTION 4. REPRESENTATIONS AND WARRANTIES
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The Company represents and warrants as follows:
4.1 Due Incorporation and Authorization; Capitalization
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(a) The Company is a deemed public company and is duly incorporated
and validly existing and in good standing under the laws of India and has power
to own its properties and assets, to carry on its businesses as presently
conducted or proposed to be conducted, to enter into and perform its obligations
under this Agreement and the other Documents and to allot and issue the Equity
Shares to be issued pursuant to this Agreement. The Memorandum and Articles of
Association which have been furnished to you are correct and complete as of the
date hereof. The Company is not in violation of any term of its Memorandum or
Articles of Association. The Company has taken all necessary action to
authorize the execution of this Agreement and the other Documents.
(b) The authorized share capital of the Company is 25,000,000 Equity
Shares. As of the Closing Date, 15,750,000 Equity Shares, options to purchase
5,000 Equity Shares and warrants to purchase 750,000 Equity Shares are issued
and outstanding. Except as previously set
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forth above, the Company has not issued or agreed to issue and is not obligated
to issue any warrants, options or other rights to purchase or acquire any shares
of its capital stock, other than the IPO. All preemptive rights of existing
stockholders have been duly disapplied for the purposes of permitting the
allotment and issuance of Equity Shares to you under this Agreement.
(c) All securities issued by the Company prior to the date hereof have
been issued in transactions which comply with applicable securities laws,
including, to the extent applicable, the Securities Act.
4.2 Financial Statements
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The report and financial statements of the Company for the period
ended March 31, 1999 and June 30, 1999 have been prepared in accordance with
generally accepted accounting principles and practices as applicable in the
United States consistently applied, are consistent with the Company's books and
records and give a true and fair view of the financial condition, assets and
liabilities of the Company as of such date, and since June 30, 1999 the Company
has conducted its business in the ordinary course and consistent with past
practices and there has been no material adverse change in the financial
condition or the business, assets, operations or prospects of the Company.
Except as and to the extent reflected or reserved against in the Company's
financial statements for the period ended June 30, 1999 or as incurred in the
ordinary course of business, since the date thereof the Company does not have
and is not subject to any material liability or obligation of any nature which
is required to be set forth in its financial statements, whether accrued,
absolute, contingent or otherwise.
4.3 Due Execution and Delivery
--------------------------
This Agreement and the other Documents have been duly executed and
delivered by the Company, constitute legal, valid and binding obligations of the
Company and are enforceable in accordance with their respective terms.
4.4 No Violation
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Neither the execution and delivery of this Agreement or the other
Documents nor the compliance with the terms thereof will violate (a) the
Company's Memorandum and Articles of Association Company, (b) any of the terms,
conditions or provisions of, or constitute a default or require any consent
under, any indenture, agreement or other instrument to which the Company is a
party or by which it is bound or violate any of the terms or provisions of any
judgment, decree or order or any statute, rule or regulation applicable to the
Company or (c) result in a violation of, or constitute a default under, any
provision of any law regulation or rule applicable to the Company, except in the
case of clause (b) or (c) any such violations which are not material to the
business or financial condition of the Company.
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4.5 Absence of Breach
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The Company is not in breach of, or in default under, any agreement,
including without limitation, any financing agreement, to which it is a party or
by which it is bound to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
4.6 Consents
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All permissions, licenses, consents, registrations and authorizations
and other approvals for the time being required under the laws of India or any
other jurisdiction or of any third party to authorize the allotment and issue of
Equity Shares under this Agreement and for the validity or enforceability of
this Agreement and the other Documents and the consummation of the transactions
contemplated hereby and thereby, have been obtained and are in full force and
effect.
4.7 Litigation
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The Company is not engaged in any significant litigation or
arbitration proceeding and is not aware of any facts likely to give rise to any
significant litigation or arbitration proceedings.
4.8 Immunity
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In any proceedings in the Company's jurisdiction of incorporation in
relation to this Agreement, the Company will not be entitled to claim for itself
or any of its assets immunity from suit, execution, attachment or other legal
process.
4.9 No Default
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The Company is not in default in the payment of any due and payable
taxes, interest or penalties, or in the filing, registration or recording of any
document or in breach of any legal or statutory obligation or requirement of the
Company.
4.10 Required Filings
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Except as required by the laws of India and disclosed to you, it is
not necessary or advisable that this Agreement be filed, registered, recorded or
enrolled with any court, public office or other authority in any jurisdiction or
that any documentary, registration or similar tax or duty be paid on or in
relation to any such Agreement. To the extent that any such amounts are payable
(including stamp duties required by Indian law), the Company covenants that such
amounts shall be paid by it and that duly stamped copies of the Documents shall
be provided to you.
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4.11 Intellectual Property
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Except as set forth on Schedule 4.11, to the best of the Company's
knowledge, the Company has good title and ownership of all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for its business as now conducted and as proposed
to be conducted without any conflict with or infringement of the rights of
others. Except as set forth on Schedule 4.11, there are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity. To the best of the Company's knowledge, (a) the Company
has not violated and, by conducting its business as proposed, will not violate
any of the patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity and (b) no
other Person has violated or is violating any of the Company's intellectual
property rights to a material extent.
4.12 Hardware and Software; Year 2000 Compliance
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(a) The Hardware has been satisfactorily maintained and supported and
has the benefit of an appropriate maintenance and support agreement. The Company
has sufficient technically competent and trained employees to ensure proper
handling, operation, monitoring and use of its computer systems. Disaster
recovery plans are in effect and are adequate to ensure that the Hardware,
Software and data can be replaced or substituted without material disruption to
the business of the Company. The Company has adequate procedures to ensure
internal and external security of the Hardware, Software and Data, including
(without limitation) procedures for preventing unauthorized access, preventing
the introduction of a virus, taking and storing on-site and off-site back-up
copies of Software and Data.
(b) All Hardware, Software, Software Products and other equipment used
by the Company are Year 2000 Compliant, except as would not reasonably be
expected to have a Material Adverse Effect.
4.13 Affiliate Transactions
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Since June 30, 1999 there has been no Affiliate Transaction in excess
of U.S.$60,000.
4.14 Disclosure
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This Agreement and the other Documents and each certificate, document,
agreement, report or instrument referred to in the Schedules, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
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SECTION 5. INDEMNIFICATION
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5.1 Indemnification by the Company
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Subject to Section 5.3, the Company agrees to indemnify and hold
harmless you, your officers and directors and each person, if any, who controls
you within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments relating to or arising from the untruth, inaccuracy or breach of a
representation contained in Section 4 of this Agreement or from the breach of
any covenant or agreement on the part of the Company under this Agreement,
except that the obligation of the Company under this Section 5.1 with respect to
such losses, claims, damages, liabilities and judgments shall not exceed the
purchase price for the Equity Shares purchased by you.
5.2 Indemnification by the Purchaser
--------------------------------
Subject to Section 5.3, you agree to indemnify and hold harmless the
Company, the Company's officers and directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages,
liabilities and judgments relating to or arising from the untruth, inaccuracy or
breach of a representation contained in Section 1.3 of this Agreement or from
the breach of any covenant or agreement on your part under this Agreement,
except that your obligation under this Section 5.2 with respect to such losses,
claims, damages, liabilities and judgments shall not exceed the purchase price
for the Equity Shares purchased by you.
5.3 Limitation of Rights; Termination
---------------------------------
Neither you nor the Company shall have any rights under this Section 5
with respect to any claim for which written notice is not delivered to the other
party prior to the date on which the IPO is consummated. Except with respect to
claims for which written notice is delivered to the other party prior to the
date on which the IPO is consummated, all obligations of the parties under this
Section 5 shall terminate upon consummation of the IPO.
SECTION 6. DEFINITIONS
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As used in this Agreement, the following terms shall have the
following meanings:
Affiliate: With respect to any specified Person, any other Person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. Without limiting the
foregoing, (i) all directors and officers of a Person that is a corporation, and
all managing members of a Person that is a limited liability company, shall be
deemed Affiliates of such Person for all purposes hereunder, and (ii) in the
case
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of an individual, Affiliate shall include (a) members of such specified Person's
immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K
under the Securities Act) and (b) trusts, the trustee and all beneficiaries of
which are such specified Person or members of such Person's immediate family as
determined in accordance with the foregoing clause (a).
"Affiliate Transaction" shall mean (i) any sale, lease, transfer or
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other disposition by the Company or its subsidiaries of any of their respective
properties or assets to, (ii) any purchase of property or assets by the Company
or its subsidiaries from, (iii) any investment by the Company or its
subsidiaries in, (iv) any agreement (including without limitation, the Company's
Memorandum and Articles of Association, and including any amendments,
supplements or any other modifications to such agreements) by the Company or its
subsidiaries with or for the benefit of, or (v) any other transaction between
the Company or its subsidiaries with SCSL, any of its Affiliates or any other
Affiliate of the Company.
Agreement: See Section 1.1.
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Amendment: Amendment 3 to Electronic Commerce Provider Agreement of
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even date herewith by and among you, Sterling Commerce International, Inc. and
the Company.
Closing: See Section 1.2.
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Closing Date: See Section 1.2.
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Code: The Internal Revenue Code of 1986, as amended from time to
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time, and any successor statute or law thereto.
Company: Satyam Infoway Limited, a limited liability company under
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the laws of the Republic of India, registered with the registrar of companies in
Andhra Pradesh and having its registered office at IInd Floor, Mayfair Centre,
1-8-303/36, S.P. Road, Secunderabad - 500 003, India.
Documents: This Agreement, the Stockholders Agreement, the
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Registration Rights Agreement, the Amendment and the Equity Shares.
Encumbrance: Any interest or equity of any persons (including any
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right to acquire, option or preemptive right); any mortgage, charge, pledge,
lien, assignment, hypothecation, security interest (including any created by
law), title retention or other security or agreement; and any rental, hire
purchase, credit sale or other agreement for payment on deferred terms.
Equity Shares: See Section 1.1.
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Exchange Act: The U.S. Securities Exchange Act of 1934, as amended
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from time to time, and any successor statute or law thereto.
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ERISA: The U.S. Employee Retirement Income Security Act of 1974, as
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amended from time to time, and any successor statute or law thereto.
GAAP: Those generally accepted accounting principles and practices
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which are recognized as such by the American Institute of Certified Public
Accountants acting through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards or committees
thereof and which are consistently applied for all periods after the date hereof
so as to properly reflect the financial conditions, and the results of
operations and cash flows, of the Company and its consolidated Subsidiaries,
except that any accounting principle or practice required to be changed by the
Accounting Principles Board or Financial Accounting Standards Board (or other
appropriate board or committee of such boards) in order to continue as a
generally accepted accounting principle or practice may so be changed.
Hardware: Any computer equipment used by or for the benefit of the
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Company at any time including, without limitation, parts of computer equipment
such as firmware, screens, terminals, keyboards, disks and including without
limitation, cabling and other peripheral and associated electronic equipment but
excluding all software.
IPO: See Section 1.4.
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Lien: Any material mortgage, pledge, lien, encumbrance, charge or
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adverse claim affecting title or resulting in a charge against real or personal
property, or security interest of any kind (including, without limitation, any
conditional sale or other title retention agreement; provided however, that the
term Lien shall not include (i) liens for taxes or other governmental charges
not yet due and owing, and those being contested in good faith by appropriate
proceedings and as to which adequate reserves have been made on the books of the
Company; (ii) mechanics', materialmans', carriers', landlords', and other
similar liens arising in the ordinary course of business for sums not yet due
and owing, and those being contested in good faith by appropriate proceedings;
and (iii) deposits or pledges to secure the performance of bids tenders,
contracts (other than for borrowed money), leases, statutory obligations,
surety, fidelity, and appeal bonds, or other deposits or pledges for purposes of
a general nature incurred in the ordinary course of business).
Material Adverse Effect: (i) Any material adverse effect whatsoever
-----------------------
upon the validity, perfection or enforceability of any Document, the Equity
Shares, (ii) any material adverse effect on the results of operations, financial
condition, properties, assets, business or prospects of the Company, or (iii)
any material adverse effect on the ability of the Company to fulfill its
obligations under the Documents, the Equity Shares or any document contemplated
hereby or thereby.
Person: An individual, partnership, corporation, limited liability
------
company, trust or unincorporated organization or a government or agency or
political subdivision thereof.
Registration Rights Agreement: The Registration Rights Agreement of
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even date herewith by and between the Company and you.
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SCSL: Satyam Computer Services Limited, the Company's parent.
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Securities Act: The U.S. Securities Act of 1933, as amended from time
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to time, and any successor statute or law thereto.
Software Products: Any software and associated documentation and
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materials, which is now or has at any previous time been supplied by the
Company.
Stockholders Agreement: The Stockholders Agreement of even date
----------------------
herewith by and among the Company, SCSL and you.
Subsidiary: With respect to any Person (the "parent"), any
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corporation, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power are,
at the time as of which any determination is being made, owned or controlled by
the parent or one or more subsidiaries of the parent.
Year 2000 Compliant: The ability to provide all the following
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functions:
(a) accurate processing of all date information whether before, during
or after January 1, 2000, including, without limitation, accepting date
input, providing accurate date output and performing accurate calculations
involving dates or portions of dates;
(b) performing all processing accurately, efficiently and without
interruption before, during and after January 1, 2000 without any change in
operations, or in any input or output procedures;
(c) processing date input accurately in a way that does not create any
ambiguity as to century; and
(d) storing, retrieving and processing date information accurately and
in a manner that does not create any ambiguity as to century.
SECTION 7. MISCELLANEOUS
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7.1 Notices
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All notices and other communications provided for or permitted
hereunder shall be made by hand-delivery, telecopier, or overnight air courier
guaranteeing next day delivery:
(a) if to any of you, at 4600 Lakehurst Court, Dublin, Ohio 43106,
Attention: Al Hoover, with a copy (which shall not constitute notice) to
Skadden, Arps, Slate Meagher & Flom, LLP, 919 Third Avenue, New York, New York
10022, Attention: Eric J. Friedman, Esq.; and
(b) if to the Company, at Maansarovar Towers, 271-A, Anna Salai,
Teynampet, Chennai - 600 018, India, Attention: R. Ramaraj, with a copy to IInd
Floor, Mayfair Centre, 1-8-
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303/36, S.P. Road, Secunderabad - 500 003, India, and to M.G. Ramachandran, B 12
Kalindi Colony, New Delhi - 110 065, India, and to Latham & Watkins, 135
Commonwealth Drive, Menlo Park, California 94025, Attention: Anthony J.
Richmond, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt
acknowledged, if telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
The parties may change the addresses to which notices are to be given by giving
five days' prior notice of such change in accordance herewith.
7.2 Successors and Assigns
----------------------
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including, without limitation,
and without the need for an express assignment, subsequent holders of Equity
Shares.
7.3 Amendment and Waiver
--------------------
This Agreement and the other Documents may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by you and the
Company.
7.4 Counterparts
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This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
7.5 Headings
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The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
7.6 Governing Law
-------------
This Agreement shall be governed by and construed in accordance with
the laws of India.
7.7 Entire Agreement
----------------
This Agreement, together with the other Documents and the Equity
Shares, is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This Agreement, together
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with the other Documents, and the Equity Shares, supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
7.8 Severability
------------
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that all of your rights and privileges shall be enforceable to the
fullest extent permitted by law.
7.9 Confidentiality
---------------
You agree that you will not, and will not permit your officers,
directors, employees or agents to, disclose to any other Person (except your
Affiliates) any confidential or proprietary information furnished to you by the
Company or any Subsidiary, except (i) as required by law or legal process or by
any governmental authority, (ii) such information as becomes or is generally
available to the public other than as a result of a disclosure prohibited
hereby, (iii) such information that is or becomes available to you on a non-
confidential basis from a source not bound by this or another confidentiality
agreement with the Company or any Subsidiary, (iv) such information that you
disclose to your respective attorneys, advisors and representatives, provided
that each such Person shall be deemed to be bound by the terms of this Section
7.9; and (v) such information that you disclose to a Person who is a prospective
assignee of some or all Equity Shares, provided that such Person has first
signed a confidentiality agreement substantially identical to that set forth in
this Section.
7.10 Survival of Representations and Warranties
------------------------------------------
The representations and warranties in this Agreement shall survive the
Closing Date and terminate upon the one-year anniversary of the Closing Date.
7.11 Arbitration
-----------
(a) Any and all claims, disputes, questions or controversies
involving the parties hereto and arising out of or in connection with this
Agreement, or the execution, interpretation, validity, performance, breach or
termination hereof (collectively, "Disputes") shall, upon the written request of
--------
any party to this Agreement, be first referred to senior officers of each party
for resolution. The senior officers shall meet immediately and attempt to
negotiate a resolution of the Dispute. If such officers, negotiating in good
faith, are unable to resolve and settle the dispute within fifteen (15) calendar
days after the Dispute is first submitted to them, then any such officer shall
be entitled to cause the Dispute to be submitted for settlement pursuant to the
terms of Section 7.11(b).
(b) Any Dispute which is not settled after an attempt by the parties
hereto by amicable negotiation under Section 7.11(a) shall be resolved by final
and binding arbitration. The arbitration shall be held in London in accordance
with the Rules of Arbitration of the International
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Chamber of Commerce as then existing and shall be heard and determined by an
arbitral tribunal composed of three (3) arbitrators. Each party shall nominate
one arbitrator within thirty (30) days after the date on which the Dispute is
submitted to arbitration pursuant to this 7.11(b), and both of such arbitrators
shall nominate a third arbitrator, who shall serve as the Chairman of such
arbitral tribunal, within sixty (60) days after the date on which the Dispute is
submitted to arbitration pursuant to this 7.11(b). If any arbitrator has not
been named within the time limits specified herein, such appointment shall be
made by the International Court of Arbitration of the International Chamber of
Commerce, upon the written request of any party, if possible within thirty (30)
days of such request. In the event there are more than two parties to a Dispute,
whether as claimants or respondents, the procedure for selection of arbitrators
remains the same as above, except that each of the multiple claimants and/or
respondents shall jointly appoint an arbitrator.
(c) Neither the existence of any Dispute nor the fact that any
arbitration is pending hereunder shall relieve either party hereto of its
respective obligations under this Agreement.
(d) Each party agrees that all of the transactions contemplated by
this Agreement shall constitute and shall be deemed to constitute commercial
activities. To the extent that any party may be entitled in any jurisdiction
whatsoever to claim immunity, whether characterized as sovereign or otherwise,
from litigation, execution, set-off, attachment or other legal process of any
nature whatsoever, it hereby expressly and irrevocable waives such immunity.
(e) Any arbitration proceedings, decision or award rendered hereunder
and the validity, effect and interpretation of this arbitration agreement shall
be governed by the laws of the place of arbitration and by the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June
10, 1958. The award shall be final and binding on the parties and judgment upon
any award may be entered in any court of competent jurisdiction.
(f) To the fullest extent permitted by law, the parties hereby waive
any rights of appeal to any court of competent jurisdiction with respect to any
question of law arising in the course of the arbitration or with respect to any
award, whether interlocutory or final. The parties expressly agree that leave
to appeal or state a special case under Section 45 or Section 69 of the English
Arbitration Act of 1996 shall not be sought with respect to any question of law
arising during the course of the arbitration or with respect to any award made.
However, the parties do not intent to deprive any court of its jurisdiction to
issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid
of the arbitration proceedings or in connection with the enforcement of any
award. Without prejudice to the availability of provisional remedies under the
jurisdiction of a competent court, the arbitral tribunal shall have fully
authority to grant provisional remedies.
(g) The arbitral tribunal may consolidate an arbitration arising under
or relating to this Agreement, the Stockholders Agreement and the Registration
Rights Agreement with any other arbitration arising under or relating to any of
these agreements, if the subject of the disputes in the arbitrations arises out
of or relates essentially to the same set of facts or transactions, and no party
would be prejudiced thereby. Such consolidated arbitration(s) shall be
determined by the arbitral tribunal appointed for the arbitration proceeding
that was commenced first in time.
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(h) The arbitration proceedings conducted pursuant to this Agreement
shall be confidential. Neither party shall disclose or permit the disclosure of
any information about the evidence adduced or the documents produced by the
other party in the arbitration proceedings or about the existence, contents or
results of the arbitration without the prior written consent of the other party
except as required by law or in the course of a judicial, regulatory or
arbitration proceeding, as may be requested or required by a governmental
authority or as required for the enforcement of an arbitral award. Before
making any disclosure permitted by the preceding sentence, the party intending
to make such disclosure shall give the other party reasonable written notice of
the intended disclosure and afford the other party a reasonable opportunity to
protect its interests.
7.12 Specific Performance
--------------------
The parties hereto agree that the provisions of this Agreement are
reasonable and necessary to protect the interests of the parties and that the
parties' remedies at law for breach of any of the provisions of this Agreement
will be inadequate and that, in connection with any such breach, the parties
will be entitled, in addition to any other remedies (whether at law or in
equity), to temporary and permanent injunctive relief in accordance with
applicable law.
(Signature pages follow)
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If this Agreement is satisfactory to you, please so indicate by
signing the acceptance on a counterpart of this Agreement and deliver such
counterpart to the Company whereupon this Agreement will become binding between
us in accordance with its terms.
Very truly yours,
SATYAM INFOWAY LIMITED
By: /s/ R. Ramaraj
----------------------------
Name: R. Ramaraj
Title: Managing Director
Witnessed by:
/s/ K. Thiagarajan
-------------------------------
Name: K. Thiagarajan
Title: General Manager - Finance
Acknowledged and Agreed:
STERLING COMMERCE, INC.
By: /s/ Albert K. Hoover
------------------------------
Name: Albert K. Hoover
Title: Senior Vice President and General Counsel
Witnessed by:
/s/ Shelly R. Boggs
---------------------------------
Name: Shelly R. Boggs
Title: Legal Administrative Assistant
<PAGE>
Schedule 4.11
-------------
Intellectual Property
---------------------
User Agreement, effective April 1, 1999, by and between the Company and Satyam
Computer Services Limited
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