Call and Put Option Agreement - Wipro Ltd., Spectramind eServices Private Ltd. and Employee-Optionees of Spectramind eServices Private Ltd.
CALL AND PUT OPTION AGREEMENT - _____________________
THIS CALL AND PUT OPTION AGREEMENT - ___________________ ('AGREEMENT") is made
on this the 17th day of July, 2002
A. ____________________, son / daughter / wife of __________________, residing
at ______________________________________ (hereinafter referred to as
"OPTIONEE" which expression shall unless it be repugnant to the context be
deemed to include his legal heirs, executors and administrators);
B. WIPRO LIMITED, a company incorporated under the Companies Act ,1956,,
having its registered office at Doddakannelli, Sarjapur Road, Bangalore 560
035, (hereinafter referred to as "WIPRO" which expression shall unless it
be repugnant to the context be deemed to include its successors and
assigns); and
C. SPECTRAMIND ESERVICES PRIVATE LIMITED, a company incorporated under the
Companies Act ,1956,, having its registered office at 239, Okhla Industrial
Estate Phase III, New Delhi 110020, India (hereinafter referred to as
"COMPANY" which expression shall unless it be repugnant to the context be
deemed to include its representatives, successors and assigns).
Each of Optionee, the Company and WIPRO shall be referred to herein as a "PARTY"
and jointly as the "PARTIES".
RECITALS
A. The Spectramind eServices Private Limited ("COMPANY") is engaged in the
business of remote processing activities and has set up a remote processing
centre at Okhla, New Delhi.
B. Optionee and the Company entered into a Stock Option Agreement as modified
by a Supplemental Stock Option Agreement dated July 17, 2002, with respect
of the grant of options to him under the employee stock option scheme of
the Company, and pursuant thereto, Optionee is the owner of the employee
stock options as specified in Schedule 1 ("EMPLOYEE STOCK OPTIONS").
C. Optionee and Wipro desires to execute a Call and Put Option over the Option
Shares subject to and in accordance with the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements made
herein, the Parties hereby agree as follows:
1. DEFINITIONS
1.1 The following words and phrases, wherever used in this Agreement, shall
have the following meanings:
"ACQUISITION DATE" shall mean the date(s) on which the Option Shares are
allotted to the Optionee pursuant to the exercise of the relevant Employee
Stock Options and the Company will allot the Option Shares within three (3)
days of such exercise as provided in the employee stock option scheme of
the Company
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"CALL NOTICE" shall mean the notice delivered by WIPRO on Optionee pursuant
to Clause 2.1 of this Agreement
"CALL/PUT OPTION PERIOD" shall mean the six months following each of the
Acquisition Date
"CAUSE" shall have the meaning assigned to it in the Employment Agreement.
"CONFIDENTIAL INFORMATION" means information received by the Optionee from
any Investor or the Company or any of its subsidiaries in respect of the
activities and affairs of the Company or any of its subsidiaries including
the information received by the Optionee as a member on the board of
directors on the Company or any of its subsidiaries and in respect of the
transactions contemplated by or otherwise pursuant to this Agreement that
is proprietary either to the Investor or the Company or any of its
subsidiaries including information relating to the MIS, customer
information, employees, process and systems etc., provided that such term
does not include information that (a) was publicly known or otherwise known
to such receiving Party prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such
receiving Party or any Person acting on such Party's behalf, or (c)
otherwise becomes known to such receiving Party other than through
disclosure by the delivering Party or any Person with a duty to keep such
information confidential.
"ENCUMBRANCE" means any charge, lien, equity, third party right, option,
right of pre-emption or any other encumbrance, priority or security
interest of whatsoever nature.
"EQUITY SHARES" means the equity shares of Rs.10/- each of the Company
"NOTICE DATE" shall mean the date of service of the Call Notice as per
Clause 2.1, or the date of service of the Put Notice as per Clause 2.2.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement or Service
Agreement entered into by the Optionee with the Company or any of its
affiliates.
"EMPLOYEE STOCK OPTIONS" shall mean the employee stock options granted to
Optionee by the Company and as specified in Schedule 1.
"STRIKE PRICE" shall mean the Fair Market Value of the Equity Shares
"FAIR MARKET VALUE" shall mean the value of each Equity Share based on
enterprise value of the Company divided by 8,10,69,742 shares, being the
number of shares of the Company on a fully diluted and as fully converted
basis as on the date of this Agreement, as applicable for the quarter in
which the Notice Date falls. The enterprise value will be as determined by
an External Independent Valuer of international repute, as the case may be
by reference to (i) liquidity, (ii) yield capabilities, (iii) book value,
and (iv) average metrics of the top five listed global companies comparable
in the same space in which the Company is operating. The Fair Market Value
shall be determined initially as of April 1st 2003 and thereafter on at
least a semi-annual basis commencing from such date.
"OPTION SHARES" shall mean the Equity Shares issued and allotted by the
Company to Optionee pursuant to the exercise of the Employee Stock Options.
"PUT NOTICE" shall mean the notice delivered by Optionee on WIPRO pursuant
to Clause 2.2 of this Agreement
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"SETTLEMENT DATE" shall mean the date for the transfer of the Option Shares
not being later than seven (7) days from the relevant Notice Date.
"SETTLEMENT PERIOD" means the period between the Notice Date and the
Settlement Date.
"OPTION SHARE DOCUMENTS" shall mean the original share certificates
pertaining to the Option Shares and share transfer forms for transfer of
the Option Shares.
2. CALL AND PUT OPTION
2.1 At any time during the Call/Put Option Period, WIPRO shall have the option
to purchase all or any of the Option Shares by issuing a Call Notice at the
relevant Strike Price. The Call Notice will specify the number of Option
Shares intended to be purchased. On the exercise of such option by WIPRO,
Optionee shall be obliged to sell to WIPRO, on a spot delivery basis, the
Option Shares at the relevant Strike Price, and such sale shall be subject
to Optionee's confirmation that the Option Shares are without any
Encumbrance. Such purchase by WIPRO of the Option Shares shall be completed
on a spot delivery basis on the Settlement Date as contemplated in Section
3. It is clarified that WIPRO shall be entitled to purchase the Option
Shares either directly or designate a nominee for this purpose. Provided
that in respect of the Option Shares which are allotted at different dates,
WIPRO may issue one or more Call Notices during the relevant Call/Put
Option Period.
2.2 At any time during the Call/Put Option Period, Optionee shall have the
option to sell all or any of the Option Shares by issuing a Put Notice at
the relevant Strike Price. The Put Notice will specify the number of Option
Shares intended to be sold. Upon exercise of such an option by Optionee,
WIPRO shall be shall be obliged to purchase, on a spot delivery basis, the
Option Shares at the relevant Strike Price, and such purchaser shall be
subject to Optionee's confirmation that the Option Shares are without any
Encumbrance. Such purchase by WIPRO of the Option Shares at the relevant
Option relevant Strike Price shall be completed on a spot delivery basis on
the Settlement Date as contemplated in Section 3. It is clarified that
WIPRO shall be entitled to purchase the Option Shares either directly or
designate a nominee for this purpose. Provided that in respect of the
Option Shares which are allotted at different dates, Optionee may issue one
or more Put Notices during the relevant Call/Put Option Period.
2.3 Optionee shall be bound, upon receipt of the Call Notice or issue of the
Put Notice, as the case may be to sell all the Option Shares at the Strike
Price to WIPRO and undertake all necessary action in the Settlement Period
including, but not limited to, the execution of any and all documents and
transfer deeds required to complete such sale and transfer of the Option
Shares for consideration received.
2.4 WIPRO shall be bound, upon issue of the Call Notice or receipt of Put
Notice, as the case may be to purchase from the Optionee all the Option
Shares at the Strike Price and make payment of the consideration.
2.5 The Company shall undertake all steps and actions to give effect to the
transactions contemplated in this Agreement.
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3. COMPLETION
Completion shall take place on the Settlement Date at the registered office
of the Company. At the Completion, (a) Optionee shall simultaneously with
the payment by WIPRO of an amount equal to the Strike Price multiplied by
the number of Option Shares which are subject matter of the relevant Call
Option or the Put Option as the case may be , deliver or cause to be
delivered to WIPRO, or its nominee, the Share Documents, and do such things
and execute such other documents as shall be necessary, or as WIPRO may
reasonably request, to give effect to the sale of the Option Shares which
are subject matter of the relevant Call Option or the Put Option as the
case may be, and (b) WIPRO shall simultaneously with the delivery of the
Share Documents by the Optionee, make payment to Optionee of an amount
equal of the Strike Price multiplied by the number of Option Shares which
are subject matter of the relevant Call Option or the Put Option as the
case may be.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF WIPRO
WIPRO hereby represents and warrants that:
(a) It has full legal capacity and legal right to undertake its
obligations provided for in this Agreement, and to execute and deliver
this Agreement, and to perform and observe the terms and provisions
hereof applicable to it. This Agreement constitutes the legal, valid
and binding obligations of WIPRO enforceable against it in accordance
with the terms hereof. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary actions on its
part; and
(b) The execution, delivery and performance of this Agreement does not and
will not violate or exceed its legal capacity or contravene any
provision of any applicable law, regulation, decree or order to which
it is subject, or any contract, agreement or other instrument to which
it is a party, or which is binding upon it or to any provision of any
mortgage, deed, contract, agreement or other instrument to which it is
a party, or which is binding upon it or attaches to any of its assets.
4.2 REPRESENTATION AND WARRANTIES OF OPTIONEE
Optionee represents and warrants that:
(a) This Agreement constitutes the legal, valid and binding obligations of
Optionee enforceable against Optionee, in accordance with the terms
hereof.
(b) The execution, delivery and performance of this Agreement does not and
will not violate or exceed Optionee's legal capacity or contravene any
provision of any applicable law, regulation, decree or order to which
he is subject, or any contract, agreement or other instrument to which
Optionee is a party, or which is binding upon Optionee or to any
provision of any mortgage, deed, contract, agreement or other
instrument to which Optionee is a party, or which is binding upon
Optionee or attaches to any of his assets.
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5. COVENANTS
5.1 Optionee and WIPRO undertake and agree that they shall abstain from any
action, the object or effect of which would be to restrict and prevent the
sale, transfer and disposal of the Option Shares under this Agreement,
except as contemplated in this Agreement.
5.2 In the event that there is a change of law in India making the enforcement
of this Agreement illegal in India, the Parties undertake that they shall,
upon demand by either Party enter into a spot delivery agreement on the
same terms as this Agreement for the purchase of the Option Shares, if the
same is permissible under Indian law. If such spot delivery sale is not
permissible by Indian law, the Parties agree to execute any other modified
contract or agreement to give effect to the contemplated transactions in
compliance with such change in law.
5.3 NON-COMPETE AND NON-SOLICITATION
(a) The Optionee acknowledges that in the course of his employment with
the Company and its affiliates the Optionee will become familiar with
the Company's and its affiliates trade secrets and with other
confidential information concerning the Company and its affiliates and
that Optionee's services have been and will be of special, unique and
extraordinary value to the Company and its affiliates. Therefore, the
Optionee agrees that, during his employment, and (i) in the case of
termination for Cause or resignation, for two years thereafter, and
(ii) in the case of termination by the Company and its affiliates
without Cause, during the period in which the Optionee receives
payments of Salary pursuant to paragraph 5(b) of the Employment
Agreement (the "NONCOMPETE PERIOD"), Optionee shall not directly or
indirectly own, manage, control, participate in, consult with, render
services for, or in any manner engage in any business competing with
the businesses of the Company or its subsidiaries as such businesses
exist or are in process on the date of the termination of the
Optionee's employment, within any geographical area in which the
Company or its subsidiaries engage or plan to engage in such
businesses.
(b) During the Noncompete Period, the Optionee shall not directly or
indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any affiliate to leave the employ of the
Company or such affiliate, or in any way interfere with the
relationship between the Company or any subsidiary and any employee
thereof, or (ii) induce or attempt to induce any customer, supplier,
licensee or other business relation of the Company or any affiliate to
cease doing business with the Company or such affiliate, or in any way
interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any affiliate.
(c) If, at the time of enforcement of this Clause 5.3, a court shall hold
that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that
the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or
area and that the court shall be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area permitted
by law.
(d) In the event of the breach or a threatened breach by Optionee of any
of the provisions of this Clause 5.3, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may
apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or
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other relief in order to enforce or prevent any violations of the
provisions hereof (without posting a bond or other security).
5.4 RECONSTITUTION RIGHTS
The Parties agree that in the event of any restructuring and/or
recapitalisation of the Company or any event constituting similar effect
including but not limited to issue of bonus shares, rights shares, mergers,
sale, dissolution, liquidation of the Company, WIPRO and Company will take
all such neccessary steps to protect the intent of the Parties set out in
this Agreement and place the Optionee in the same economic position that it
would have been, had any such aforementioned event not occurred or
initiated.
6. EFFECTIVE DATE AND DURATION OF OBLIGATIONS
6.1 This Agreement shall come into force on ___________.
6.2 This Agreement shall terminate upon the expiry of the Call/Put Option
Period in respect of the last of the Option Shares which the Optionee is
entitled to be allotted in respect of the Options specified in Schedule 1.
6.3 If a Call Notice(s) or a Put Notice shall have been served on or prior to
the expiry of the Call/Put Option Period, this Agreement shall continue in
force even after the periods specified in Clause 6.1, until the fulfillment
of the Parties obligations hereunder in relation to all such Call
Notice(s)/Put Notice(s) whereupon it shall terminate.
7. MISCELLANEOUS
7.1 ENTIRE UNDERSTANDING
This Agreement constitutes the entire understanding of the Parties with
reference to the subject matter of this Agreement and supersedes any and
all prior negotiations, correspondence, agreements, understandings, duties
or obligations among the Parties with respect to the subject matter hereof.
7.2 AMENDMENTS
This Agreement shall not be amended, modified, altered or changed in any
way except in a writing executed by a duly authorised representative of
each Party. A waiver by any Party hereto of any provision of this Agreement
or a breach thereunder shall not be deemed to constitute a subsequent or
future waiver of the same or any other provision or a breach of this
Agreement.
7.3 SPECIFIC PERFORMANCE
The Parties hereby acknowledge and confirm that it is impossible to measure
in money the damages which will accrue to a Party or to their heirs,
personal representatives, or assigns by reason of a failure to perform any
of the obligations under this Agreement and therefore agree that the terms
of this Agreement shall be specifically enforceable.
If any Party or his heirs, personal representatives, or assigns institutes
any action or proceeding to specifically enforce the provisions hereof, any
Party against whom such action or proceeding is brought (i) hereby waives
the claim or defense therein that such Party or such personal
representative has an adequate remedy at law, and (ii) hereby confirms that
it shall not offer in any such action or proceeding the claim or defense
that such remedy at law exists.
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7.4 NOTICES
All notices, communications and other correspondence required or permitted
by this Agreement shall be in writing and shall be sent by (a) facsimile,
with confirmation copy sent by registered first class airmail, (b) by
personal delivery with acknowledgement of receipt or (c) by registered,
first class air mail, return receipt requested and postage prepaid, to the
following address:
<TABLE>
<S> <C>
in the case of Optionee to: At the address mentioned in the description
of the Optionee on page 1.
in the case of Wipro to: Wipro Limited,
Doddakannelli,
Sarjapur Road,
Bangalore 560 035
ATT'N: Corporate Executive Vice President Finance
FAX: (91) 80 844 0051
</TABLE>
All such notices, communications and correspondence shall be sent and
deemed to have been received as follows: (i) if by facsimile, upon receipt
of the confirmation copy; and (ii) if by personal delivery, courier or
registered, first class airmail, upon receipt or refusal of delivery. A
Party may change the address to which notices are to be sent by a notice
complying herewith to that effect. All notices will be in English.
7.5 WAIVER
No failure or delay by either Party in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of the same preclude any further exercise
thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by either Party of any breach by the
other of any provision hereof shall be deemed to be a waiver of any
subsequent breach of that or any other provision hereof. If at any time any
provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect, the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired thereby.
7.6 EXPENSES
Except as otherwise specifically provided for in the Agreement, each Party
shall bear its respective expenses, costs and fees (including attorneys',
auditors' and financing commitment fees) in connection with the
transactions contemplated hereby, including the preparation, execution and
delivery of this Agreement.
7.7 ARBITRATION
If any disputes, differences, or questions arise in respect of this letter
or the subject matter hereof, the same shall be settled by arbitration in
accordance with the Arbitration and Conciliation Act, 1996 by a sole
arbitrator.
The arbitration shall take place in Bangalore and shall be conducted in
English.
During the arbitration, all Parties shall continue to fulfill their
respective obligations under this Agreement except for such obligations and
other matters which are the subject of the arbitration.
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The arbitral award shall be in writing, state the reasons for the award,
and be final and binding on the Parties concerned. The award may include an
award of costs, including reasonable attorneys' fees and disbursements.
7.8 TITLE, CAPTIONS AND HEADINGS
The titles, captions and headings contained in this Agreement are inserted
for the convenience of reference only and are not intended to affect in any
way the construction or interpretation of this Agreement.
7.9 BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, successors, permitted assigns,
executors and administrators of the Parties hereto.
7.10 CONFIDENTIALITY
The Seller shall maintain the confidentiality of Confidential Information
in accordance with procedures adopted by the Seller and shall not disclose
to any third party or use the same for any purpose whatsoever, provided
that the Seller may deliver or disclose Confidential Information to (i) any
Governmental authority having jurisdiction over the Seller to the extent
required by law, or (ii) any other person to which such delivery or
disclosure may be necessary or appropriate (A) to effect compliance with
any Law applicable to such Party, (B) in response to any subpoena or other
legal process, or (C) in connection with any litigation to which such Party
is a party, provided further that, at the time of such disclosure as above,
its shall provide the Purchaser with prompt written notice thereof so that
the Purchaser may seek (with the cooperation and reasonable efforts of the
Seller) a protective order, confidential treatment or other appropriate
remedy, and in any event shall furnish only that portion of the information
reasonably necessary for the purpose at hand, and shall exercise reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded such information to the extent reasonably requested by the
Purchaser.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective the date
first mentioned above.
SIGNED BY )
OPTIONEE BEING )
In the presence of )
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SIGNED BY )
For and on behalf of )
WIPRO LIMITED )
In the presence of )
SIGNED BY )
For and on behalf of )
SPECTRAMIND ESERVICES PRIVATE LIMITED )
In the presence of )
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