Share Sale and Purchase Agreement - ChrysCapital I LLC and Wipro Ltd.
SHARE SALE AND PURCHASE AGREEMENT - CHRYSCAPITAL
This SHARE SALE AND PURCHASE AGREEMENT - CHRYSCAPITAL (this "AGREEMENT"), is
made as of this 18th day of July, 2002 by and between:
A. CHRYSCAPITAL I, LLC, A Mauritius limited life company with limited
liability, having its principal office at 3rd Floor, Les Cascades, Edith
Cavell Street, Port Louis, Mauritius (hereinafter referred to as
"CHRYSCAPITAL " or "SELLER" which expression shall unless it be repugnant
to the context be deemed to include its successors, and permitted assigns);
and
B. WIPRO LIMITED, a company incorporated under the Companies Act, 1956, having
its registered office at Doddakannelli, Sarjapur Road, Bangalore 560 035,
India (hereinafter referred to as "WIPRO" or "PURCHASER" which expression
shall unless it be repugnant to the context be deemed to include its
successors, and permitted assigns).
Each of Seller and Purchaser shall be referred to herein as a "PARTY" and
collectively as the "PARTIES".
RECITALS
A. The Seller owns 82.24% of the share capital of Spectramind Limited, a
limited liability company incorporated in Bermuda having its registered
office at Cedar House, 41, Cedar Avenue, Hamilton, Bermuda (hereinafter
referred to as the "COMPANY") consisting of 791,974,345 Series A Preferred
Shares of par value US$ 0.01 per share and it also owns 90,650,070 Series
XB Warrants, 19,386,732 Series YB Warrants, 290,985,375 Series DB Warrants,
235,724,139 Series EB Warrants (collectively referred to as "CHRYSCAPITAL
SECURITIES").
<PAGE>
B. The Company through its wholly owned subsidiary in Mauritius, Spectramind
Limited, Mauritius owns a holding interest in Spectramind eServices Pvt.
Limited, which is engaged in the business of remote processing activities
and has set up a remote processing centre at Okhla, New Delhi.
C. ChrysCapital, Housing Development Finance Corporation Limited ("HDFC"), Mr.
Raman Roy, Spectramind Limited, Mauritius, Spectramind eServices Private
Limited and the Company had entered into a Shareholders' Agreement dated as
of March 15, 2000 (the "OLD SHAREHOLDERS' AGREEMENT") in relation to
investments in the Company, Spectramind Limited, Mauritius and Spectramind
eServices Private Limited.
D. ChrysCapital, Mr. Raman Roy, WIPRO, Spectramind Limited, Mauritius,
Spectramind eServices Private Limited and the Company entered into another
Shareholders Agreement dated as of October 21, 2001, which superceded and
replaced in its entirety the Old Shareholders Agreement ("PRESENT
SHAREHOLDERS AGREEMENT").
E. ChrysCapital, HDFC, Mr. Raman Roy, WIPRO, American Express Travel Related
Services Company, Inc ("AMEX"), Spectramind Limited, Mauritius, Spectramind
eServices Private Limited and the Company entered into a Modified
Shareholders Agreement dated as of 12th February, 2002 which partly amended
the Present Shareholders Agreement ("MODIFIED SHAREHOLDERS AGREEMENT").
F. ChrysCapital, HDFC, Amex and the Company had entered into a Bermuda
Shareholders Agreement dated as of February 12, 2002 which was in line with
the Modified Shareholders Agreement ("Bermuda Shareholders Agreement")
G. The Purchaser desires to purchase from Seller in compliance with the
requirement of the Present Shareholders Agreement as modified by the
Modified Shareholders Agreement, as well as the Bermuda Shareholders
Agreement and Seller desires to sell to Purchaser all the ChrysCapital
Securities on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements made
herein, the Parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement the following terms shall have the respective
meanings given to them below or in the Sections or documents indicated
below:
"AGREEMENT" shall mean this Share Sale and Purchase Agreement
"AFFILIATE" means, with respect to any entity, any other entity which
controls, is controlled by or is under common control with such entity.
"CONTROL/CONTROLS" include the possession, directly or indirectly, of the
power to constitute the majority of the Board of Directors of an entity or
to direct or cause the direction of the management policies of a entity
whether through the ownership of the voting securities of such entity or by
contract or otherwise.
"BOARD" shall mean the respective Board of Directors on the board of
Spectramind eServices Private Limited, Spectramind Limited, Mauritius, and
the Company as the case may be.
<PAGE>
"BERMUDA SHAREHOLDERS AGREEMENT" shall have the same meaning as in Recital
F.
"CHRYSCAPITAL SECURITIES" shall have the same meaning assigned to it in
Recital A.
"CONSIDERATION" shall mean the consideration referred to in Clause 3(a).
"CLOSING" shall have the meaning given to it under Clause 4.
"CLOSING DATE" shall mean the date on which the payment of the entire
consideration is made in one shot to the Seller in respect of the transfer
of the ChrysCapital Securities as contemplated in this Agreement.
"COMPANY" shall have the same meaning assigned to it in Recital A.
"CONFIDENTIAL INFORMATION" means information received by Seller from the
Purchaser 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 Seller's Board nominees 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 Purchaser 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.
"EXECUTION DATE" shall mean the date of execution of this Agreement.
"INVESTORS" means, collectively, Mr Raman Roy, ChrysCapital, HDFC, WIPRO,
AMEX and the Management Team.
"MODIFIED SHAREHOLDERS AGREEMENT" shall have the meaning assigned to it in
Recital E.
"MANAGEMENT TEAM" shall mean the Management Team of Spectramind eServices
Private Limited as listed out in Schedule 1 hereto.
"OLD SHAREHOLDERS AGREEMENT" shall have the meaning assigned to it in
Recital C.
"PRESENT SHAREHOLDERS AGREEMENT" shall have the meaning assigned to it in
Recital D.
<PAGE>
"PURCHASER'S INDEMNITEES" shall have the meaning given to it under Clause 9
(a).
"SELLERS INDEMNITEES" shall have the meaning given to it under Clause 9 (b)
"SHAREHOLDER/S" shall mean the shareholders of the Company.
"THIRD PARTY" means any party other than Mr. Raman Roy, ChrysCapital, HDFC,
WIPRO, AMEX and the Management Team.
2. INTEREST TO BE PURCHASED.
Subject to the terms and conditions of this Agreement and with effect from
July 1, 2002, which is the date on which the parties mutually agreed that
the effective control and risks and rewards of ownership transferred to the
Purchaser, the Purchaser hereby has agreed to purchase from the Seller, and
Seller hereby has agreed to sell to Purchaser, the ChrysCapital Securities
and all of the rights, privileges, and obligations that attach to such
ChrysCapital Securities, including the right and entitlement to be allotted
shares by the Company pursuant to the Series XB Warrants, Series YB
Warrants, Series DB Warrants and Series EB Warrants, all dividends, cash
securities, and other property from time to time to be paid or distributed
in respect of all or any part of the ChrysCapital Securities and all
conversion rights and options under all or any of the warrants issued by
any of the Company or any of its subsidiaries and all rights with respect
to Seller's rights and obligations under the Present Shareholders
Agreement, Modified Shareholders Agreement and the Bermuda Shareholders
Agreement.
The Parties confirm that the proposed sale and purchase of ChrysCapital
Securities shall be in compliance with the requirements of the Present
Shareholders Agreement, Modified Shareholders Agreement and the Bermuda
Shareholders Agreement since the Seller does not wish to sell its shares in
the Company to a Third Party and therefore the rights of first refusal and
the tag along procedure as specified in Clause 4 and 5 of the Present
Shareholders Agreement shall not apply.
In consideration of the execution of this Agreement and with the express
agreement that the Purchaser shall not consummate a transaction with any
other Investor prior to the Closing Date, the Seller hereby irrevocably
waives as of the date of this Agreement, all or any rights that it has/may
have under the Present Shareholders Agreement as modified by the Modified
Shareholders Agreement and the Bermuda Shareholders' Agreement in respect
of any sale and purchase of Equity Securities (as defined in the Present
Shareholders Agreement) between Purchaser and one or more of the Investors
(other than the Seller) including the rights of first offer and tag along
rights under Sections 4 and 5 of the Present Shareholders Agreement.
However, if the Closing does not occur by July 31, 2002, or such other
future date as may be mutually agreed upon between the Parties in writing
prior to July 31, 2002, then the Seller's waiver shall stand cancelled and
the Purchaser or other Shareholders will require a new written waiver from
the Seller to proceed with any transaction, whether already entered into or
otherwise, in respect of any sale or purchase of Equity Securities (as
defined in the Present Shareholders Agreement
3. PAYMENT.
(a) Subject to the satisfaction or waiver of the conditions precedent set forth
in SECTION 5 and the other terms and conditions of this Agreement, the
consideration payable to the Seller
<PAGE>
for the purchase of the ChrysCapital Securities by WIPRO shall be United
States Dollars 60.49 million ("THE CONSIDERATION"), payable in accordance
with the terms and conditions set out in this Agreement. No deduction shall
be made by the Purchaser from the Consideration
(b) At the Closing (as such term is hereinafter defined), Purchaser shall pay
the Seller by wire transfer to an account or accounts designated by Seller
in writing to Purchaser for that purpose an amount equal to the entire
Consideration.
4. CLOSING AND TERMINATION.
(a) Subject to Section 5(a) and (b), the completion of the sale and purchase of
the ChrysCapital Securities (the "CLOSING") contemplated by this Agreement
shall take place, on the terms and subject to the conditions of this
Agreement, at a location to be mutually agreed between the Parties on or
before 31st July, 2002 , or such later date as may be mutually agreed to in
writing by all Parties (the "CLOSING DATE").
(b) At the Closing, Seller shall deliver or cause to be delivered to Purchaser:
(i) the certificate/warrants representing the ChrysCapital Securities
(which include the Series A Preferred Shares each fully paid to the
extent of US$ 0.01 per share), along with a duly executed share
transfer form in favor of the Purchaser;
(ii) an officer's certificate on behalf of Seller dated as of the Closing
Date with respect to the organizational documents and the
authorization for execution of this Agreement as well as the
transactions contemplated by this Agreement.
(iii) an officer's certificate on behalf of Seller dated the Closing Date
confirming that all the Sellers' conditions to the Closing Date have
been satisfied or waived and that the representations and warranties
of Seller set forth in this Agreement as of Closing Date continues to
true and correct in all material respects.
(c) At the Closing, Purchaser shall deliver or cause to be delivered to Seller:
(i) the Consideration, as evidenced by a written confirmation of receipt
of such amount from the recipient bank denominated by ChrysCapital;
(ii) an officer's certificate on behalf of Purchaser dated the Closing
Date with respect to the organizational documents and and the
authorization for execution of this Agreement as well as the
transactions contemplated by this Agreement;
(iii) an officer's certificate on behalf of Purchaser dated the Closing
Date confirming that all the Purchaser's conditions to the Closing
Date have been satisfied or waived and that the representations and
warranties of Purchaser set forth in this Agreement as of the Closing
Date continue to remain true and correct in all material respects.
(iv) Copy of requisite approvals of the other Government Authorities, RBI
Approval or any other approval if required, for payment and
remittance of the Consideration of the ChrysCapital Securities to the
Seller.
(d) Following delivery of the documents specified in Sections 4(b) and (c), the
Seller shall cause for a board meeting of the Company to be held to pass
resolutions relating to transfer of the ChrysCapital Securities in the name
of Purchaser, and after the board
<PAGE>
meeting the name of Purchaser shall be entered in the Register of Members
of the Company as the owner of the ChrysCapital Securities, and the
relevant share certificate will be endorsed in the name of the Purchaser.
Seller will cooperate to the extent necessary or required for the board of
the Company to accomplish such purposes. Further upon Closing, ChrysCapital
shall cause the resignation of all its directors on the Board and the
appointment of WIPRO nominees in place of such nominees.
5. CONDITIONS PRECEDENT.
(a) The obligation of Purchaser to consummate the transactions contemplated by
Section 4(a) to 4(c) of this Agreement shall be subject to the fulfillment
by the Seller on or before the Closing Date, of each of the following
conditions, unless specifically waived by the Purchaser:
(i) the delivery of all of the documents and other items to be delivered
to Purchaser at the Closing pursuant to Section 4(b);
(ii) the representations and warranties of the Seller set forth in this
Agreement continue to remain as true and correct as of the Closing
Date.
(iii) all approvals of governmental or regulatory authorities having
jurisdiction over the transactions contemplated by this Agreement,
necessary on the part of the Seller to the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby, shall have been obtained.
(b) The obligation of Seller to consummate the transactions contemplated by
Section 4(a) to 4(c) of this Agreement shall be subject to the fulfillment
by the Purchaser, on or before the Closing Date, of each of the following
conditions unless specifically waived by the Seller:
(i) the delivery of all of the amounts, documents, and other items to be
delivered by Purchaser at the Closing pursuant to Section 4(c);
(ii) the representations and warranties of the Purchaser set forth in this
Agreement continue to remain as true and correct as of the Closing
Date.
(iii) all approvals of governmental or regulatory authorities including
from the Reserve Bank of India having jurisdiction over the
transactions contemplated by this Agreement, necessary on the part of
the Purchaser or their respective affiliates to the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby, shall have been obtained;
(iv) A written letter of waiver from all the Investors of the Company
other than AMEX confirming waiver of all rights the Investor has
under the Present Shareholders Agreement as modified by the Modified
Shareholders Agreement and the Bermuda Shareholders Agreement in
respect of any sale and purchase of the Equity Shares of the Company
or its subsidiaries including the tag along rights or the rights of
first refusal
<PAGE>
(v) The Reserve Bank of India approval dated 25th January 2002 approving
the payment of Consideration by the Purchaser ("RBI APPROVAL")
continues to be valid, binding and subsisting in full force and
effect as on the Closing Date.
(c) Notwithstanding anything contained anywhere in this agreement, if the
Seller does not receive the Consideration, without any deduction of
whatsoever nature including , withholding tax in India or otherwise, the
Seller is not required to consummate the transaction contemplated herein
and the Closing shall be deemed to have not occurred. The Parties may then
mutually discuss and agree on the future course of action to be taken vis a
vis this transaction.
6. COVENANTS.
(a) The Seller shall not make, and shall cause its Affiliates not to make, any
press releases or press conferences with respect to the transactions
contemplated by this Agreement prior to the Closing Date or at any time
thereafter for a period of three (3) months after the Closing Date, without
the prior written consent of the Purchaser which consent shall not be
unreasonably withheld by the Purchaser. Provided however, that the Seller
shall, at all times, be entitled to communicate the details of this
Agreement to its investors, committees and board. Notwithstanding anything
contained herein, for the period of 3 months immediately after the Closing
Date, the Seller shall be entitled to disclose the transactions
contemplated by this Agreement to third parties in the ordinary course of
its business provided that such disclosure is not by way of either a press
release or press conference. It is hereby clarified that upon the expiry of
3 months from the Closing Date, none of the restrictions on the Seller
stipulated under this Clause 6(a) shall be effective against the Seller.
(b) Each Party agrees to use its reasonable efforts to take or cause to be
taken all actions necessary, proper, or advisable under applicable law and
regulations to consummate the transactions contemplated by this Agreement,
including filing for and pursuing all necessary third party, governmental,
regulatory, and other approvals that may be required.
(c) Purchaser shall be responsible for the payment of all stamp duties and
sales, transfer, withholding, or similar taxes, if any, that may be
assessed in respect of the transfer of all or any portion of the Shares.
For avoidance of doubt, it is clarified that the Seller shall be
responsible for any income or capital gains taxes, as per Bermuda Law.
(d) Except as provided in Section 9, each Party shall pay the fees and expenses
of its respective counsel, accountants and other experts and shall pay all
other expenses incurred by it in connection with the negotiation
preparation and execution of this Agreement and the consummation of the
transactions contemplated hereby. The provisions of this Section 6(d) shall
survive the Closing.
(e) Purchaser agrees that it has the requisite RBI Approval to remit the
Consideration to the Seller upon Closing in accordance with the terms of
this Agreement and that it shall take all actions necessary to keep such
approval valid and subsisting upon Closing and shall do all things
necessary to ensure due payment of the Consideration in terms of this
Agreement.
(e) Seller agrees and undertakes to the Purchaser that for a period of two (2)
years from the Closing Date, or the expiry of the Management Team lock-in
as per the existing employment agreements of the Management Team with the
Company (which will remain in force post Closing), whichever is earlier,
the Seller shall not directly or knowingly
<PAGE>
solicit or entice or endeavour to solicit or entice away from the Company
or any of its subsidiaries any member of the Management Team of the Company
or any of its subsidiaries save and except (i) in the event of termination
by the Company of any member of the Management Team, then, the Seller or
its Affiliate would be free to recruit such a member of the Management
Team; and (ii) none of the restrictions stipulated in this Clause 6(f )
would be applicable where such solicitation has not been initiated by the
Seller either directly or indirectly either on its own behalf or on behalf
of any other Affiliate or person or entity.,
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Purchaser that as of Execution Date as
well as on the Closing Date:
(a) the Company is duly organized and validly constituted under the laws of
Mauritius and is a tax resident in Mauritius;
(b) it has the requisite power and authority to make, execute, deliver, and
perform this Agreement and to consummate the transactions contemplated
herein;
(c) the execution, delivery, and performance by it of this Agreement and the
consummation of the transactions contemplated hereby, including the sale of
all or any portion of the Shares to Purchaser will not (i) violate any
provision of its memorandum and articles of association or other
constituent documents, (ii) violate any provision of law or any order of
any court or government applicable to it or any of its property or any
mortgage or security;
(d) no, approval of any governmental or regulatory agency, is required in
connection with or to complete the sale of the ChrysCapital Securities or
the consummation of the other transactions contemplated by this Agreement
(e) there are no actions, suits, proceedings, or investigations, at law or in
equity or by or before any court, government, administrative agency or
arbitrator, of any nature, that might have an effect on the sale of all or
any portion of the Shares by it or the consummation of the transactions
contemplated by this Agreement;
(f) this Agreement has been duly executed and delivered by an authorized
signatory and constitutes the valid and binding obligations of it,
enforceable against it in accordance with its terms except insofar as the
enforceability may be limited by bankruptcy, insolvency, moratorium, or
similar laws affecting creditors' rights generally or by general principles
of equity;
(g) it is the sole legal, beneficial, and record owner of the ChrysCapital
Securities and all rights with respect thereto, with full and unrestricted
power to sell, convey, transfer, assign, endorse, and otherwise deliver the
ChrysCapital Securities and related rights to Purchaser as provided in this
Agreement; and after the sale of the ChrysCapital Securities it shall not
hold any shares in the Company.
(h) it has not employed any broker, finder, advisor or intermediary in
connection with the transactions contemplated by this Agreement that would
be entitled to a broker's fee, finder's or similar fee or commission in
connection therewith or upon the consummation thereof.
<PAGE>
(i) Notwithstanding what is set forth in this Agreement, Seller has not made,
and disclaims, any representation or warranty, whether express or implied
and whether by common law, statute, or otherwise, regarding (i) the
business/financial prospects of the Company, or (ii) any assets of the
Company, save and except in respect of the ChrysCapital Securities to the
extent expressly stated herein. The Parties agree and affirm that the
ChrysCapital Securities are being sold and transferred on an "as is, where
is" basis. The representations and warranties of Seller set forth in this
Agreement shall survive the Closing for a period of one year from the
Closing Date.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller that:
(a) it is a corporation duly organized, validly existing, and in good standing
under the laws of India;
(b) it has the requisite power and authority to make, execute, deliver and
perform this Agreement and to consummate the transactions contemplated
herein;
(c) the execution, delivery, and performance by it of this Agreement and the
consummation of the transactions contemplated hereby, including the
purchase of all or any portion of the ChrysCapital Securities from Seller,
will not (i) violate any provisions of its memorandum and articles of
association or other constituent documents, (ii) violate any provision of
law or any order of any court or government applicable to it or any of its
property, ;
(d) no approval of any government or regulatory agency is required in
connection with or to complete the sale of the ChrysCapital Securities or
the consummation by it of the transactions contemplated by this Agreement
except the RBI Approval which shall be valid and subsisting and in full
force and effect as of Closing.
(e) no notice is required to be given to any person, court, or government or
any agency thereof by it in connection with the consummation of the
transactions contemplated by this Agreement except such notices as will be
given on or before the Closing;
(f) there are no actions, suits, proceedings, or investigations, at law or in
equity or by or before any court, government, administrative agency or
arbitrator of any nature, that might have an effect on the consummation of
the transactions contemplated by this Agreement and that are pending or
threatened against, involving, or affecting it;
(g) this Agreement has been duly executed and delivered by an authorized
signatory of it and constitutes the valid and binding obligations of it,
enforceable against it in accordance with its terms except insofar as the
enforceability may be limited by bankruptcy, insolvency, moratorium, or
similar laws affecting creditors' rights generally or by general principles
of equity; and
(h) it has not employed any broker, finder, advisor or intermediary in
connection with the transactions contemplated by this Agreement that would
be entitled to a broker's fee, finder's or similar fee or commission in
connection therewith or upon the consummation thereof
(i) The representations and warranties of Purchaser set forth in this Agreement
shall survive the Closing for a period of one (1) year.
<PAGE>
9. INDEMNIFICATION.
(a) Seller hereby agrees to indemnify, defend, and hold harmless Purchaser and
each of Purchaser's shareholders, Affiliates, officers, directors,
employees, agents, successors, and assigns (collectively, the "PURCHASER
INDEMNITEES") from and against each and every demand, claim, loss
(including any reduction in value), liability, judgment, damage,
assessment, cost, and expense (including interest, penalties, costs of
preparation and investigation, and the reasonable fees, disbursements, and
expenses of attorneys, accountants, and other professional advisors) in
excess of U.S.$ 100,000 imposed on or incurred by the Purchaser
Indemnitees, directly or indirectly, relating to, resulting from, or
arising out of: (i) any inaccuracy in any representation or warranty of
Seller contained in this Agreement, but only if the claim or demand for
such indemnification is asserted prior to any date upon which such
representation or warranty expires pursuant to Section 7 (i)
(b) Purchaser hereby agrees to indemnify, defend, and hold harmless Seller and
each of the Sellers's Affiliates, officers, directors, employees, agents,
successors, and assigns (collectively, the "SELLER INDEMNITEES") from and
against each and every demand, claim, loss (including any reduction in
value), liability, judgment, damage, assessment, cost, and expense
(including interest, penalties, costs of preparation and investigation, and
the reasonable fees, disbursements, and expenses of attorneys, accountants,
and other professional advisors) in excess of U.S.$ 100,000 imposed on or
incurred by the Seller Indemnitees, directly or indirectly, relating to,
resulting from or arising out of: (i) any inaccuracy in any representation
or warranty of Purchaser contained in this Agreement, but only if the claim
or demand for such indemnification is asserted prior to any date upon which
such representation or warranty expires pursuant to Section 8(i) or (ii)
any breach or nonfulfillment of any covenant, agreement, or other
obligation of Purchaser under this Agreement; (iii) any expenses incurred
by the ChrysCapital nominated directors nominated on the Board of the
Company and or its subsidiaries in defending any legal proceedings
initiated against them by any third party or any appropriate authorities
arising out of any alleged acts or omissions on the part of the directors
prior to the Closing Date save where such liability has arisen due to any
fraud or negligence willfully committed by a ChrysCapital nominated
director on the Board of the Company or its subsidiaries. .
(c) If any claim or assertion of liability is made or asserted against a party
entitled to be indemnified pursuant to this Section 9 (an "INDEMNIFIED
PARTY"), the Indemnified Party shall with reasonable promptness and, in any
event, no later than ten (10) days prior to the time the response to such
claim or assertion of liability must be given, give to the other party
("INDEMNIFYING PARTY") written notice of the claim or assertion of
liability and request the Indemnifying Party to defend the same. The
Indemnified Party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Indemnified Party
unless (i) the engagement thereof has been specifically authorized by the
Indemnifying Party in writing, or (ii) the Indemnifying Party has failed to
promptly assume the defense of such action.
The Indemnifying Party shall not be permitted to enter into any settlement
or compromise involving any action or relief other than money unless the
Indemnified Party shall have been notified in writing of the proposed
settlement or compromise and shall have consented in writing thereto which
consent shall not be unreasonably withheld or delayed. The Parties will
co-operate with each other in the defense of any such action
<PAGE>
and the relevant records of each shall be available to the other with
respect to such defense.
10. DISPUTE RESOLUTION.
Any dispute, controversy or claim ("DISPUTE") arising out of, relating to,
or in connection with this Agreement, or the breach, termination or
validity hereof, shall initially be resolved by amicable negotiations among
executives of the Parties, and, if not resolved through such negotiations
within thirty (30) days of written notice of the existence of such Dispute,
be finally settled by arbitration by a single arbitrator. The arbitration
shall be conducted in accordance with the Indian Arbitration and
Conciliation Act, 1996 in effect at the time of the arbitration, except as
they may be modified by mutual agreement of the Parties. The seat of the
arbitration shall be Bangalore, India and it shall be conducted in the
English language. The arbitrator shall be appointed in accordance with the
Indian Arbitration and Conciliation Act, 1996.
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.
Judgment upon the award may be entered by any court having jurisdiction
thereof or having jurisdiction over the relevant Party or its assets.
11. NOTICES.
All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
(i) on the date of delivery if delivered personally or by a recognized
overnight delivery service to the Party to whom the notice, request, demand
or other communication is to be given or (ii) on the day of transmission by
telecopy if sent during normal business hours and otherwise on the next
succeeding business day:
To Seller:
CHRYSCAPITAL I, LLC
3rd Floor, Les Cascades
Edith Cavell Street
Port Louis
Mauritius
Att'n: Director
Fax: [230-211-2000]
<PAGE>
To Purchaser: Doddakannelli,
Sarjapur Road,
Bangalore 560 035
India
Att'n: Corporate Executive Vice President Finance
Fax: (91) 80 8440051
Either Party may change any address to which notices are to be given to it
by giving notice as provided above of such change of address.
12. MISCELLANEOUS.
(a) Entire Agreement
This Agreement represents the full and complete agreement of the Parties
with respect to the subject matter hereof and supersedes all prior
agreements (whether written or oral) between the Parties with respect to
the subject matter hereof. No modification of this Agreement shall be valid
unless the same is in writing and signed by each Party.
(b) Assignment
Rights and obligations under this Agreement may not be assigned or
delegated by any Party without the written consent of the other Party. The
Purchaser may nominate anyAffiliate ("Nominee") to purchase the
ChrysCapital Securities on behalf of the Purchaser in which event both the
Purchaser and the Nominee shall be bound by the terms and provisions of
this Agreement and the respective rights and obligations of Purchaser and
Seller.
(c) Governing Laws
This Agreement shall be governed, interpreted and enforced in accordance
with the laws of India.
(d) 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.
(e) Severability
If any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable, or void, this
Agreement shall continue in full force and effect without said provision;
provided, however, that if such severability materially changes the
economic benefits of this Agreement to either Party, the Parties shall
negotiate an equitable adjustment in the provisions of this Agreement in
good faith.
(f) Limitation of Liability
<PAGE>
Notwithstanding any other provision of this Agreement, no Party shall have
any liability to any other Party for any special, punitive, exemplary,
indirect, incidental or consequential loss and damages, including damages
for loss of profit, loss or use or business stoppage (irrespective of
whether the same be characterized as direct or indirect losses),
irrespective of whether such liability arises in contract, breach, tort
(including negligence and strictly liability), or otherwise.
Subject to Clause 7, the Purchaser hereby confirms on Execution Date its
satisfaction that it is not aware of any facts, and that there is nothing,
which has or may have any adverse effect on the purchase of ChrysCapital
Securities as contemplated herein. At Closing, the Purchaser hereby
releases and absolves ChrysCapital from any duties and/or obligations that
may be prevalent under the Old Shareholders Agreement, Present Shareholders
Agreement or the Modified Shareholders Agreement or other arrangements.
(g) Waiver
Any of the conditions to the Closing set forth in this Agreement may be
waived at any time in writing prior to or at the Closing by the party
entitled to the benefit thereof. No waiver of any of the provisions of this
Agreement shall be deemed to be or constitute a waiver of any other
provision whether similar or not. No single waiver shall constitute a
continuing waiver.
(h) Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the
same instrument.
(i) Survival
The provisions of Section 12 (j) shall survive for a period of two years
from the expiration or earlier termination of this Agreement.
(j) 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 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. Provided that nothing contained herein will be applicable to the
Seller disclosing such Confidential Information to either its legal or
financial advisors or any consultants, agents, custodians and advisors that
the Seller may hire or retain in the course of the Seller's business.
<PAGE>
(k) Specific Performance
The Parties hereto agree that the obligations imposed on the Purchaser or
the Seller, as the case may be, in the transaction agreements are special,
unique and of an extraordinary character, and that, in the event of breach
by the Purchaser or the Seller, as the case mty be, damages would not be an
adequate remedy and therefore the Seller or the Purchaser ,as the case may
be, shall be entitled to specific performance and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity; and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief. The
remedy set forth in this Section is cumulative and shall in no way limit
any other remedy available under law, in equity or pursuant hereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective the date
first mentioned above.
SIGNED BY GULPREET KOHLI )
FOR AND ON BEHALF OF )
CHRYSCAPITAL I, LLC )
IN THE PRESENCE OF )
SIGNED BY SATISH MENON )
FOR AND ON BEHALF OF )
WIPRO LIMITED )
IN THE PRESENCE OF )
<PAGE>
SCHEDULE 1
TO THE SHARE SALE AND PURCHASE AGREEMENT - CHRYSALIS
DETAILS OF THE MANAGEMENT TEAM
MR RAMAN ROY
MR RAJ DUTTA
MR S VARADARAJAN
MS NILANJANA PAUL
MR EDWARD QUINTERO
MR SUNIL GUJRAL
MR MAHESH NAIR
MR SUNIL RAWAL
MR ASHOK CHADHA
MS PADMINI MISRA
MR UPENDRA SINGH
MR G MADHAVAN
MS. ANITA P.