Business Sale and Purchase Agreement - Wipro Ltd. and Wipro ePeripherals Ltd.
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BUSINESS SALE AND PURCHASE AGREEMENT
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BY AND AMONG:
(1) WIPRO LIMITED
(2) WIPRO EPERIPHERALS LIMITED
(3) PROMOTERS
Dated August, 30 2000
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CONTENTS Page
Clause Heading
1 Definitions and Interpretation
2 Sale of business
3 Consideration
4 Completion
5 Factory Land
6 Factory Buildings
7 Factory Plant, Machinery and other Fixed Assets
8 Items of general stores in stock
9 Licensed and Registrations
10 Amenities including water, electricity, drainage, etc.
11 Equipment, Furniture, Fixtures and other Fixed Assets
12 Leased Assets
13 Intellectual Property
14 Business Liabilities
15 Contracts under negotiation
16 Dealer and Franchisee channel contracts
17 Other contracts
18 Principal and Collaborator contracts
19 Wipro name and Wipro Brand name
20 Transition provisions
21 Post completion matters and indemnities
22 Representations and warranties
23 Miscellaneous
SCHEDULES
Schedule 1 Factory Land
Schedule 2 Factory Building
Schedule 3 Intellectual property
Part A - Intellectual property which includes the name Wipro
as suffix or prefix
Part B - all other intellectual property
Schedule 4 Principal and Collaborator contracts
Part A - Existing principal and collaborator contracts
Part B - Expired principal and collaborator contracts
EXHIBITS
Exhibit A Promoters list
Exhibit B Participation and Management Agreement
Exhibit C Trademark Licence Agreement
Exhibit D Facilities and Services Agreement
Exhibit E Intellectual Property Assignment Agreement
Exhibit F Form of Novation Agreement with Dealer and Franchisee Channel
Exhibit G1 Form of Novation Agreement with third parties (customers,
suppliers, etc.)
Exhibit G2 Form of Assignment of Lease agreement with Lessors of the
office premises including the residential premises
Exhibit H Form of Novation Agreement with Principal and Collaborators
Exhibit I Form of Acknowledgement of transfer of employment
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THIS BUSINESS SALE AND PURCHASE AGREEMENT is made on the 30th of August, 2000
BETWEEN:
(1) WIPRO LIMITED, a company deemed to be registered under the provisions of
the Companies Act, 1956, whose registered office is Doddakannelli, Sarjapur
Road, Bangalore 560 035, India (hereinafter referred to as "WIPRO " which
term and expression shall wherever, the context otherwise requires, be
deemed to include its successors);
(2) WIPRO ePERIPHERALS LIMITED, a company registered under the provisions of
the Companies Act, 1956, whose registered office is 40/1A, Basappa Complex,
Lavelle Road, Bangalore, India ("COMPANY" which term and expression shall
wherever the context otherwise requires be deemed to include its
successors);
(3) THE PARTIES listed in Exhibit A to this Agreement (hereinafter collectively
referred to as "Promoters" which term and expression shall wherever the
context otherwise requires be deemed to include its successors and assigns)
WHEREAS:
A. WIPRO is a diversified company having a presence in a number of businesses.
The Vendor has, inter alia, been carrying on the business of manufacture
and marketing of computer peripherals through its Peripherals Systems
Division (PSD).
B. Wipro ePeripherals Limited is a company incorporated on July 5th 2000,
which has as its main objects to design, develop, manufacture, market,
trade, maintain and export computer peripherals.
C. WIPRO decided to restructure PSD as a separate legal entity to allow
entrepreneurial talent, to get strategic investment, to facilitate the
growth of the volume driven product business in the new entity and to
create value for its shareholders.
D. Consequent to this decision, WIPRO entered into Memorandum of Understanding
(MOU) with the Promoters on June 30th, 2000 for the transfer of PSD to the
Company (after its incorporation).
E. Consistent with the requirements of the MOU, the Company has since accepted
the provisions of the MOU as valid and binding on itself, in accordance
with the provisions of the Companies Act, 1956 as well as the Specific
Relief Act.
F. In keeping with the conditions of the MOU, the Company have undertaken a
detailed due diligence (legal, commercial, business and financial) of the
Business and based on such due diligence have decided to proceed with this
transaction.
G. Therefore, the Parties hereto are now entering into this Business Sale and
Purchase Agreement whereby WIPRO has agreed to sell and the Company has
agreed to purchase the Business.
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NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES as follows:
1. DEFINITIONS AND INTERPRETATION
1.01 Definitions:
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In this Agreement, the terms listed below shall, unless the context requires
otherwise, have the meanings attached to them. These terms may be identified by
the capitalisation of the first letter of each principal word thereof.
1.1.1 "Agreement" means this Business Sale and Purchase Agreement and includes
the recitals, schedules and appendices, and any amendments to this
Agreement executed by and between the Parties in writing.
1.1.2 "Business" means the PSD as a going concern, as presently carried on by
WIPRO and, where the context permits, shall include the Business Assets
and Business Liabilities ;
1.1.3 "Business Assets" means all of the assets employed as on the effective
date solely in the Business which have been identified by and between the
Parties and set out in detail as under:
(a) Factory Land and Factory Building as defined and detailed in Schedule 1;
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(b) Factory Plant and Machinery and other fixed assets including assets taken
on lease by WIPRO as defined and detailed in the Fixed Asset register
maintained by WIPRO in respect of its PSD business and duly certified by
the statutory auditors of Wipro;
(c) All items of general stores in Stock
(d) All Licenses and Registrations required under law for carrying on the
businesseswherever so required to be transferred by WIPRO to the Company,
at the request of the Company;
(e) All amenities like water, electricity, drainage, etc;
(f) All equipments, furniture, fixtures and other fixed assets including assets
taken on lease by WIPRO wherever situated as defined and detailed in the
Fixed Asset register maintained by WIPRO in respect of its PSD business and
duly certified by the statutory auditors of WIPRO
(g) Intellectual Property as defined and detailed in Schedule 2;
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(h) All current assets relating to the business as on the Effective date which
are included in the Audited statement of Accounts of Wipro relating to PSD.
1.1.4 "Business liabilities" means the all liabilities relating to the
business as on the Effective date which are included in the Audited
statement of accounts of WIPRO relating to PSD .
1.1.5 "Consideration" means the consideration for the sale and purchase of the
Business specified in Clause 3.01;
1.1.6 "Completion" means the completion of all activities relating to the sale
and purchase of the Business by the Company as specified in Clause 4.02;
1.1.7 "Contracts under negotiation" means all contracts and agreements
currently under negotiation in the Business by and between WIPRO and any
third party.
1.1.8 "Deferred Benefits" means the benefits accruing to the Employees under
the provident fund, gratuity and pension and accumulated leave
1.1.9 "Dealer and Frachisee channel contracts" means all the existing and valid
contracts of the Business executed by WIPRO with Dealer and Frachisee
Channel.
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1.1.10 "Effective Date" means the close of business of August 31, 2000 or such
other date as the parties may mutually agree in writing;
1.1.11 "Employees" means all the employees of PSD who are to be transferred to
the Company at Completion;
1.1.12 "Equity share capital" means the total issued, subscribed and paid up
equity share capital
1.1.13 "Principal and Collaborator contracts" means;
(i) all existing and valid contracts and agreements of the Business
executed by and between WIPRO and any Principal and/or collaborator
as detailed in Part A of Schedule 4 and
(ii) all expired agreements and contracts of the Business which were
executed by and between WIPRO and any Principal and/or Collaborator
as detailed in Part B of Schedule 4, in terms of which, post
expiration of such agreements and contracts, WIPRO continues to
enjoy any right.
1.1.14 "Other Contracts" means all other existing and valid contracts and
agreements of the Business executed by and between WIPRO and any other
third party
1.1.15 "Promoters" means all the PSD employees who are shareholders of the
Company each of whom individually or along with their relatives hold
more than 0.5% of the equity share capital of the Company.
1.1.16 "Parties" means WIPRO, Purchaser and the Promoters collectively and the
term "party" shall be construed accordingly.
1.1.17 "PSD" means the Peripherals Systems Division (which forms part of the
Wipro Infotech business) of WIPRO (also known as Wipro Peripherals).
1.1.18 "MOU" means the Memorandum of Understanding dated June 30, 2000 entered
into by and between WIPRO and the Promoters.
1.02 Interpretation
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In this Agreement and the Exhibits and Schedules hereto, except to the
extent that the context otherwise requires:
(a) References to any document or agreement including this Agreement shall be
deemed to include any references to such documents or agreements as
amended, supplemented or replaced from time to time in accordance with its
terms and (where applicable) subject to compliance with the requirements
set forth therein.
(b) References to a statute, ordinance or other law shall be deemed to include
regulations and other instruments under it and consolidations, amendments,
re-enactments or replacements of any of them.
(c) References herein to Clauses Exhibits and Schedules are to
clauses in and schedules to this Agreement unless the context requires
otherwise and the Schedules to this Agreement shall be deemed to form part
of this Agreement. The headings are inserted for convenience only and shall
not affect the construction of this Agreement.
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(d) Unless the context requires otherwise, words importing the singular include
the plural and vice versa and words importing a gender include every
gender.
2. SALE OF BUSINESS
2.01 Subject to the terms of this Agreement WIPRO shall sell as legal and
beneficial owner and the Company shall purchase, together with all rights
now or hereinafter attaching thereto, the Business.
2.02 WIPRO, in entering into this Agreement, has relied on the representations
and warranties of the Company as set out in Clause 23.01 of this
Agreement.
2.03 The Company, in entering into this Agreement, has relied on the
representations and warranties of WIPRO as set out in Clause 23.02 of this
Agreement.
2.04 The sale of the Business shall take effect on and from the Effective Date.
3. CONSIDERATION
3.01 The Consideration payable by the Company for the acquisition of the
Business shall be discharged as follows:
(a) Issue and allotment by the Company to WIPRO of 5,460,000 fully paid up
equity shares of Rupees Ten each (Rs. 10/-) at par valued in the aggregate
at Rs.54,600,000 (Rupees Fifty Four Million six hundred thousand only)
which post issue (excluding issue of shares under Clause 20.3(c) and (d)
would constitute 39% of the total Equity share capital of the Company.
(b) Issue and allotment by the Company to WIPRO of 1,000,000 12.5% 5 year
redeemable secured debentures of Rs.100/- each at par valued in the
aggregate Rs.100,000,000 (Rupees One Hundred Million) to be redeemed in 10
quarterly installments with a moratorium of 10 quarters from the Effective
Date in respect of which interest will be payable quarterly on a rear ended
basis.
(c) Rs.85,400,000/- (Rupees Eighty Five Million Four Hundred Thousand) by way
of a cheque.
3.02 The consideration shall be adjusted and discharged by way of cheque after
finalisation of the net asset value as of the Effective date as approved
by the Company and Wipro
4. COMPLETION
4.01 Completion shall take place on or before August 31, 2000 at the offices of
WIPRO or at such other place as the Parties may mutually agree.
4.02 Prior to Completion, the Parties shall pass appropriate resolutions at
meetings of their General Body and /or Boards (as may be necessary under
applicable law) to give effect to the provisions of this Agreement. Such
resolutions would enable the performance of their obligations herein and
with respect to the Consideration that the Company has to make over to
WIPRO in terms of Clause 3.01.
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4.03 It is agreed that on completion all (and not part only) of the following
businesses shall be transacted on
a. the allotment of equity shares and debentures referred to in clause
3.01 (a) and (b)
b. the handing over to WIPRO of the cheques referred to in clause 3.01
(c).
4.04 The adjusted consideration as referred to in Clause 3.02 shall be paid by
the Company to Wipro not later than September 30, 2000 failing which
interest at the rate of 18% p.a. shall be payable from the due date till
the date of payment.
5. FACTORY LAND
5.01 The Factory Land was taken on lease by WIPRO from the KIADB with an
undertaking to make absolute the sale of the Factory Land to WIPRO on
completion of the lease period and compliance by WIPRO with all conditions
of the lease.
5.02 Upon expiry of the Lease period for the Factory Land WIPRO is entitled to
purchase the Factory Land from KIADB, on payment of such sums as may be
stipulated by KIADB who owns the Factory Land
5.03 WIPRO has agreed to transfer and/or convey all the rights, title, etc to
the Factory land to the Company either upon expiry of the lease period or
at any time prior thereto but with the consent of KIADB.
5.04 On the request of the Company, WIPRO confirms that it shall make every
effort for the direct conveyance of the Factory Land in favour of the
Company consequent to the provisions of this Agreement. If such efforts
are not successful, the Company agrees that WIPRO shall obtain conveyance
of the Factory Land by KIADB to WIPRO and thereafter, WIPRO shall convey
the Factory Land to the Company, subject to applicable law and the
provisions of this Agreement.
It is clarified that for the conveyance in favour of Company, the Company
shall at all times be liable for the consideration payable to KIADB as
stipulated in clause 5.02 above , including stamp duty, registration
charges, legal fees, cesses or other statutory levies or charges etc.
In the event of KIADB insisting upon first transferring the Factory land
in favour of WIPRO, then WIPRO shall be liable for all costs of transfer
including stamp duty, registration charges, legal fees, cesses or
statutory fees, charges etc. However, the consideration payable to KIADB
as stipulated in Clause 5.02 above shall be to the account of the Company.
In the event of a direct conveyance from KIADB to the Company, the Company
shall be liable for all costs of transfer including stamp duty,
registration charges, legal fees, cesses or statutory fees, charges etc.
5.05 Consistent with the requirements of Clause 5.04the Parties shall co-
operate with each other in good faith to ensure that the transfer /
conveyance of the Factory Land to the Company is completed by a registered
instrument at the earliest. From the Effective Date till such time as the
Factory Land is transferred / conveyed to the Company, WIPRO shall grant
the Company a right to use the Factory Land without any charge. However,
all costs, expenses and charges in connection with the use of the Factory
Land shall be to the Company's account.
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6. FACTORY BUILDINGS
6.01 The Factory Buildings have been constructed by WIPRO on the Factory Land.
6.02 WIPRO agrees that it shall transfer / convey the Factory Buildings to the
Company by a registered instrument at the time of conveyance of the
Factory Land to the Company in accordance with Clause 5 hereto. From the
Effective Date till such time as the Factory Building is transferred /
conveyed to the Company, WIPRO shall grant the Company a right to use the
Factory Building. However, all costs, expenses and charges in connection
with the use of the Factory Land shall be to the Company's account.
7. FACTORY PLANT, MACHINERY AND OTHER FIXED ASSETS AND ITEMS OF GENERAL
STORES IN STOCK
7.01 The Factory Plant, Machinery and other fixed assets including assets taken
on lease by WIPRO located in the Factory Building or on the Factory Land
shall stand transferred to the Company on the Effective Date.
7.02 The items of general stores in Stock stored in the Factory Land, Factory
Building and in any other premises shall stand transferred to the Company
on the Effective Date.
8. CURRENT ASSETS
8.01 All current assets viz inventories, sundry debtors, cash and bank
balances, loans and advances, etc shall be transferred to the Company as
on the Effective date.
9. LICENSES AND REGISTRATIONS
9.01 The Company is entitled to seek the transfer / assignment of the Licenses
and Registrations and WIPRO shall co-operate with the Company in good
faith and shall take all reasonable steps that the Company may require to
ensure that such Licenses and Registrations are transferred / assigned to
the Company in a timely manner.
9.02 If the Company decides that it would not like the transfer / assignment of
any particular License or Registration, it shall inform WIPRO immediately.
WIPRO shall then be free to revoke such License or Registration or to
continue with the same, with no responsibility / liability on the part of
the Company.
10. AMENITIES INCLUDING WATER, ELECTRICITY, DRAINAGE, ETC
10.01 The Amenities including water, electricity, drainage, etc and shall
stand transferred to the Company on the Effective Date.
10.02 WIPRO shall co-operate with the Company and shall take all reasonable
steps that the Company may require to ensure that all deposits and
transfer of all permits / licenses in relation to the Amenities are
transferred to the Company.
11 EQUIPMENT, FURNITURE, FIXTURES AND OTHER FIXED ASSETS
All the equipments, furniture, fixtures, telephone and other fixed assets
shall be transferred / conveyed to the Company on effective date.
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12 LEASED ASSETS
12.01 Subject to Clause 12.02,7.1 and 10.01 , all the Leased assets (forming
part of the Business Assets shall be transferred / assigned to the
Company by way of appropriate instruments within one month from the
Effective Date or such date as may be extended by the Parties.
12.02 With respect to any Leased assets which require the consent of the lessor
prior to such transfer / assignment, WIPRO and Purchaser shall take all
steps as may be necessary to obtain such consent within the period
stipulated in Clause 12.01. If the lessor does not give consent within
such stipulated period, the Parties shall examine the feasibility of a
sub-lease of the said Leased assets (in accordance with the terms and
conditions of the lease between the lessor and WIPRO) to the Company. If
a sub-lease is not feasible, WIPRO shall be under no obligation to
transfer / assign the particular Leased assets.
13 INTELLECTUAL PROPERTY
13.01 WIPRO has a wholly owned subsidiary Wipro Trademarks Holding Limited
("Wipro Trademarks") which owns the Intellectual Property (forming part
of the Business Assets as detailed in Schedule 3).
13.02 WIPRO confirms that the Intellectual Property as detailed in Part A of
Schedule 3 lists out all the Intellectual Property which has the name
"Wipro" suffixed to the trade name.
13.03 WIPRO confirms that all other Intellectual Property which do not conform
to the conditions stipulated in Clause 13.02 above are listed in Part B
of Schedule 3.
13.04 For a period of three years from the Effective Date, WIPRO shall permit
the Company to use each of the Intellectual Property listed in Part A of
Schedule 3 in accordance with the procedure set out as per applicable law
as well as the terms and conditions contained in the Trade Mark Licence
Agreement.
13.05 After the expiry of the three year period stipulated in Clause 13.04,
WIPRO shall assign each of the Intellectual Property listed in Part A of
Schedule 3 to the Company subject to the Company deleting the name
"Wipro" as a suffix to the trade mark. For this purpose, Wipro and the
Company agree to either;
a. Wipro submitting to the Trade Mark Registry for cancellation of the
registration of the Intellectual Properties so as to enable the Company to
file fresh applications for registering the trade mark without the suffix
"Wipro".
Or
b. Wipro assigning on an "as is where is basis" the trade marks to the Company
along with an application for amendment of the Trade Mark registration for
deleting all references to the name "Wipro" in the trade mark.
13.07 WIPRO confirms that it shall, in good faith, take such steps as may be
necessary to ensure that Wipro Trademarks Holding Limited transfers the
Intellectual Property as detailed in Part B of Schedule 3 to the Company
on an "as is where is basis" within one month from the Effective Date in
accordance with the procedure set out as per applicable law as well as
the terms and conditions and the provisions contained in the Intellectual
Property Assignment Agreement to be executed by and between WIPRO and the
Company.
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13.08 In respect of the Intellectual Property rights pertaining to Genius
Writer in PSD, the same shall be licensed by WIPRO to the Company on a
non exclusive basis, for a period of three years from the effective date.
After the 3 year period, the parties shall mutually decide on any further
license.
14 BUSINESS LIABILITIES
14.01 All Business Liabilities shall be to the account of the Company.
14.02 Subject to Clause 14.03 all other liabilities other than Business
liabilities pertaining to PSD which crystalizes not later than March 31,
2002 shall be to the account of WIPRO provided that such liabilities
pertain to the period prior to March 31, 1998
14.03 All sales tax liabilities pertaining to PSD pertaining to Financial Years
97-98, 98-99, 99-2000 and 1.4.2000 to 31.3.2001 shall be to the account
of the Company provided that;
a. the liability is identified by either the Company or WIPRO on or
before June 30, 2002
b. the liability does not exceed Rs.20 Mn in the aggregate
15 CONTRACTS UNDER NEGOTIATION
15.01 All the contracts under negotiation by and between WIPRO and any other
third party as of the Effective date shall be negotiated and executed by
and between the Company and the third party.
16 DEALER AND FRACHISEE CHANNEL CONTRACTS
The Dealer and Franchisee Channel contracts shall be transferred/assigned
to the Company by way of appropriate instruments (as set out in Novation
Agreement in Exhibit F to this Agreement ) within one month from the
effective date or such date as may be extended by the Parties unless
specifically waived by Wipro.
With respect to Dealer and Franchisee Channel contracts which require the
consent of the dealer or franchisee as the case may with whom WIPRO has
contracted, prior to such transfer or assignment, WIPRO shall take all
steps as may be necessary to obtain such consent within a period of one
month. If the dealer or franchisee as the case may be does not give
consent within such stipulated period, WIPRO shall be under no obligation
to transfer/assign the particular contract.
17 OTHER CONTRACTS
All other contracts shall be transferred/assigned to the Company by way
of appropriate instruments (as set out in Novation Agreement in Exhibits
G1 and G2 to this Agreement) within one month from the effective date or
such date as may be extended by the Parties.
With respect to all other contracts which require the consent of the
third party with whom WIPRO has contracted, prior to such transfer or
assignment, WIPRO shall take all steps as may be necessary to obtain such
consent within a period of one month. If the third party does not give
consent within such stipulated period, WIPRO shall be under no obligation
to transfer/assign the particular contract.
18 PRINCIPAL AND COLLABORATOR CONTRACTS
18.01 All Principal and Collaborator contracts as detailed in Part A of
Schedule 4) shall be transferred / assigned to the Company by way of
appropriate instruments (as set out in Novation Agreement in Exhibit H to
this Agreement) within one month from the Effective Date or such date as
may be extended by the Parties.
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18.02 With respect to the Principal and Collaborator Contract as detailed in
Part A of Schedule 4 which require the consent of the Principal and/or
Collaborator with whom WIPRO has contracted, prior to such transfer /
assignment of the rights under this Agreement, WIPRO and Purchaser shall
take all steps as may be necessary to obtain such consent within the
period stipulated in Clause 19.01.
18.03 If the principal or collaborator as the case may be does not give consent
within such stipulated period, WIPRO shall be under no obligation to
transfer / assign the rights under that particular Contract.
18,04 With respect to the principal and collaborator contractor as detailed in
Part B of Schedule 4 which require the consent of the principal and
collaborator with whom WIPRO has contracted, prior to assigning the
rights enjoyed by WIPRO post expiration of the contract, WIPRO and the
Company shall use their best efforts as well as take all steps as may be
necessary to assign such rights subject however to obtaining the consent
within the period stipulated in Clause 18.01.
18.05 If the principal and/or collaborator does not give consent within such
stipulated period WIPRO and the Company shall mutually agree the
methodology to be pursued to enable the Company to enjoy the rights under
the particular contract alternative .
19 WIPRO NAME AND WIPRO BRAND NAME
19.01 For a period of one year from the effective date or until the expiry of 6
months prior to an Initial Public Offering whichever is later, WIPRO
shall permit the Company to use the "Wipro" name as part of the Company's
name.
19.02 Immediately upon expiry of the term stipulated in clause 19.1, the
Company shall take all steps as may be necessary to delete the name
"Wipro" from the Company's name.
19.03 For a period of three years from Effective date, WIPRO shall permit the
Company to use the Wipro brand name in relation to its existing products.
19.04 For a period of three years from Effective date, the Company shall be
entitled to use the Wipro brand name in relation to any new products
subject however to WIPRO specifically consenting in writing for the grant
of a licence.
19.05 The usage of the Wipro name shall be subject to such terms and conditions
as well as the provisions contained in the Trademark License Agreement to
be executed by and among WIPRO, the Company and Wipro Trademarks Holding
Limited.
20 TRANSFER OF EMPLOYEES
20.01 The Company has agreed to employ on and from the Effective Date and WIPRO
has agreed to release from its employment the Employees as per the terms
and conditions contained in the Employee Transfer Agreement.
21 TRANSITION PROVISIONS
21.01 After the Effective date and upto the time specified in clause 21.03
herein, WIPRO shall permit to the extent feasible:
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(a) credit all monies received from the customers of the Business customers to
the PSD Account and shall instruct the concerned bank to transfer the
amounts received into that account on a periodic basis to an account
designated by the Company.
(b) accept in its name all purchase orders from all the customers of the
Business both existing as well as future and shall forward the same to the
Company;
(c) permit the Company to raise invoices on the customers of the Business
(where absolutely necessary) in its name on a monthly basis;
(d) permit the Company to correspond in its name with the customers of the
Business both existing as well as future;
(e) permit the Company to issue delivery challans, brochures, pamphlets in its
name in respect of despatches relating to the Business;
(f) extend the banking facilities of WIPRO (subject to the consent of the banks
involved) to the Company;
(g) authorise specified representatives of the Company to take actions in
compliance of paragraphs (b) to (e) above.
(h) Management of the provident fund, gratuity and pension funds for the
Employees;
(i) use the office and warehouse premises of WIPRO on a shared basis as well as
the use of the telephone, fax, and other communication equipments, etc.
21.02 In consideration of WIPRO giving its permission to the Company to do any
or all of the actions contemplated in Clause 21.01, the Company agrees to
pay and to indemnify WIPRO against all costs, expenses, liabilities or
claims (whether known or unknown, asserted or unasserted, matured or
unmatured, absolute or contingent, liquidated or unliquidated, incurred
directly or consequential or due or to become due) arising from or as a
result of WIPRO complying with the provisions of Clause 21.01.
21.03 WIPRO has agreed to do the actions contemplated in Clause 21.01 till such
time as the Company is able to put in place alternate arrangements and
take on the responsibility itself. The Company confirms that it shall
make the alternate arrangements forthwith and without delay and in any
event, within a period of four months from the Effective Date. Provided
that WIPRO shall, at its own discretion, be entitled to extend the period
of four months for any or all of the action contemplated in Clause 19.01.
22 POST-COMPLETION MATTERS AND INDEMNITIES
22.01 From the Effective Date and in accordance with the provisions of this
Agreement, Vendor shall cease to carry on the Business and the Company
shall be thereafter entitled to carry on the Business in succession to
WIPRO. Consequently, the Company shall bear all cost and expenses
relating to the Business and shall be entitled to receive from WIPRO all
amounts received by WIPRO from the customers of the Business.
22.02 The Company shall after Completion Date perform on its own account all
the obligations of WIPRO in relation to the Business (and in particular
in relation to the Licenses, Registrations, Leased Assets, Principal and
Collaborator Contracts, Contracts under negotiation, other contracts
Dealer and Franchisee contracts) in relation to which the benefit is
hereby transferred / agreed to be transferred. Consequently, the Company
shall indemnify and keep indemnified WIPRO against all
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actions, claims, costs, liabilities and expenses (whether known or
unknown, asserted or unasserted, matured or unmatured, absolute or
contingent, liquidated or unliquidated, incurred directly or
consequential or due or to become due) brought against or incurred by
WIPRO as a result of any act, omission or delay by the Company after
Completion Date in relation to the Business.
22.03 The Parties confirm that, except as provided in this Agreement, from the
Effective Date, neither Party shall have any claim against the other.
22.04 WIPRO and Purchaser hereby mutually agree and undertake that for a period
of 3 years from the Effective Date neither Vendor, the Company nor the
Promoter shall solicit or hire the employees of the other without
obtaining the prior written consent of the other.
23 REPRESENTATIONS AND WARRANTIES
23.01 As of the date of this Agreement, WIPRO represents and warrants as under:
(a) That is has the power to sell the Business in accordance with the terms of
this Agreement and has in this connection, obtained all necessary internal
approval for the transfer of the Business.
(b) Except as provided in this Agreement and except as stipulated by applicable
law or separately disclosed to the Company by way of a disclosure letter,
the Business is not subject to any encumbrance, mortgage, charge, pledge or
lien or any other form of security interest.
23.02 As of the date of this Agreement, the Company represent and warrant as
under:
(a) That it is duly and validly organised and incorporated under the laws of
India.
(b) That is has obtained all requisite internal approvals to enter into and
deliver this Agreement and perform the obligations hereunder.
(c) The provisions of this Agreement and all related documentation to implement
the provisions of this Agreement constitute legal, valid and binding
obligations and are enforceable against itself in accordance with the terms
of this Agreement, subject to insolvency laws and such other laws affecting
the enforcement of creditor's rights in general.
(d) There is nothing under applicable law nor any provision in its
constitutional documents which would prohibit, conflict with or in any way
prevent the execution, delivery or performance of the terms of this
Agreement.
24. MISCELLANEOUS
24.01 Stamp duty and registration charges and all other levies or duties in
respect of the sale and purchase of the Business shall be borne and paid
for by the Company. All other out of pocket expenses and lawyers fees, if
any, shall be borne by the party incurring the same.
24.02 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant Party
at its address or fax number set out below (or such other address or fax
number as the addressee has by five (5) days' prior written notice
specified to the other Party):
<PAGE>
To WIPRO: Corporate Vice President - Legal and Company Secretary
Wipro Limited,
Doddakannelli, Sarjapur Road,
Bangalore - 560 035
Fax: (91-80) 8440051
To the Company: Chief Executive Officer
Wipro ePeripherals Limited
40/1A, Basappa Complex
Lavelle Road
Bangalore -
Fax: (91-80) 2270378
To the Promoter : Ram N Agarwal
209/1B, HAL II Stage
16 B Main
Bangalore 560 008
Any notice, demand or other communication so addressed to the relevant
Party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address and (b) if given or
made by fax, when despatched.
24.03 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.
24.04 This Agreement shall not be assignable by any of the Parties.
24.05 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the parties and it is expressly
declared that no variations and / or amendments hereof shall be effective
unless made in writing.
24.06 The provisions of this Agreement including the representations,
warranties and undertakings herein contained, insofar as the same shall
not have been fully performed at Completion, shall remain in full force
and effect notwithstanding Completion.
24.07 The parties hereto shall do and execute or procure to be done and
executed all such further acts, deeds, things and documents as may be
necessary to give effect to the terms of this Agreement and to effect the
transfer of the Business to the Company as contemplated hereunder.
24.08 This Agreement is governed by and construed in accordance with Indian
law.
24.09 Any and all disputes, questions, differences or claims under or in
relation to this Agreement shall first be negotiated by and between the
Parties. At any time during the negotiations, either of the Parties can
refer the dispute, question, difference or claim to arbitration in
Bangalore, in accordance with the provisions of the Arbitration and
Conciliation Act, 1996.
<PAGE>
24.10 Subject to Clause 24.09, the courts in Bangalore alone shall have
jurisdiction in relation to this Agreement.
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by Suresh C Senapaty
Corporate Executive VP-Finance )
for and on behalf of WIPRO )
in the presence of: Satish Menon )
Corporate Vice President-Legal & Company Secretary
SIGNED by Ram N Agarwal )
for and on behalf of THE COMPANY )
in the presence of: G Srinivasan
SIGNED by Ram N Agarwal )
for and on behalf of THE PROMOTERS )
in the presence of: G Srinivasan
<PAGE>
SCHEDULE 1
Factory Land
SCHEDULE 2
Factory Building
SCHEDULE 3
Intellectual Property
PART A - INTELLECTUAL PROPERTY WHICH INCLUDES THE NAME WIPRO AS SUFFIX OR PREFIX
PART B - ALL OTHER INTELLECTUAL PROPERTY
SCHEDULE 4
Principal and Collaborator contracts
PART A - EXISTING PRINCIPAL AND COLLABORATOR CONTRACTS
PART B - EXPIRED PRINCIPAL AND COLLABORATOR CONTRACTS