Securities Sale and Purchase Agreement - Wipro Ltd. and Spectramind eServices Private Ltd.
SECURITIES SALE AND PURCHASE AGREEMENT
This SECURITIES SALE AND PURCHASE AGREEMENT - ("AGREEMENT"), is made as of this
the 17th day of July, 2002 by and between:
A. _____________________, son of ______________________, resident
_______________ (hereinafter referred to as "________________" OR
"SELLER" which expression shall unless it be repugnant to the context
be deemed to include his legal heirs, administrators and executors);
and
B. WIPRO LIMITED, a company incorporated under the Companies Act ,1956,,
having its registered office at Doddakannelli, Sarjapur Road, Bangalore
560035 (hereinafter referred to as "WIPRO" or "PURCHASER" which
expression shall unless it be repugnant to the context be deemed to
include its representatives, successors and assigns).
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).
Seller and Purchaser shall be referred to herein as a "PARTY" and collectively
as "PARTIES".
RECITALS
A. The Seller owns the Securities in Spectramind eServices Private Limited
("COMPANY") in the manner specified in Schedule 1.
B. The Company is engaged in the business of remote processing activities
and has set up a remote processing centre at Okhla, New Delhi and at
Powai, Mumbai.
C. ChrysCapital I, LLC, Mauritius (formerly known as Chrysalis Capital I,
LLC) ("CHRYSCAPITAL'), Housing Development Finance Corporation Limited
("HDFC"), Mr. Raman Roy and the Spectramind Limited, Bermuda had
entered into a Shareholders' Agreement dated as of March 15, 2000 (the
"OLD SHAREHOLDERS' AGREEMENT") in relation to investments in the
Spectramind Limited, Bermuda, Spectramind Limited, Mauritius and the
Company.
D ChrysCapital, HDFC, Mr. Raman Roy, WIPRO, Spectramind Limited,
Mauritius, Spectramind Limited, Bremuda and the Company had entered
into another Shareholders Agreement dated as of October 18, 2001
("PRESENT SHAREHOLDERS AGREEMENT") which superceded and replaced in its
entirety the Old Shareholders Agreement.
E. The signatories to the Present Shareholders Agreement and American
Express Travel Related Services Company, Inc. ("AMEX") entered into a
Modified Shareholders Agreement dated as of 12th February, 2002 which
partly amended the Present Shareholders Agreement ("MODIFIED
SHAREHOLDERS AGREEMENT").
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F. The Seller 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 the Seller under the employee
stock option scheme of the Company, and the Seller is owner of the
Options (pursuant thereto.
G. The Purchaser desires to purchase from Seller in compliance with the
Present Shareholders Agreement as modified by the Modified Shareholders
Agreement, and the Seller desires to sell to Purchaser the Securities
subject to and 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:
"AFFILIATE" means with respect to any entity/person, any other
entity/person which Controls, is Controlled by or is under common
Control with such entity.
"AGGREGATE AMOUNTS" shall mean the amount payable by the Purchaser to
the Seller as specified in Schedule 1.
"AGREEMENT" shall mean this Agreement and any written modifications
thereto and would include the Schedules specified and attached to this
Agreement.
"BOARD" shall mean the board of directors of the Company.
"CAUSE" shall have the meaning assigned to it in the Employment
Agreement.
"CLOSING" shall have the meaning given to it under Clause 5.
"CLOSING DATE" shall have the meaning given to it under Clause 5.
"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.
"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
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receiving Party other than through disclosure by the delivering Party
or any Person with a duty to keep such information confidential.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement or Service
Agreement entered into by the Seller with the Company or any of its
affiliates.
"EQUITY SHARE" shall mean a fully paid equity shares in the capital of
the Company of par value of Rupees 10 each.
"EXECUTION DATE" shall mean the date of execution of this Agreement.
"INVESTORS" means, collectively, ChrysCapital, HDFC, WIPRO, AMEX., Mr.
Raman Roy, Spectramind Limited, Mauritius, Spectramind Limited,
Bermuda, and the Management Team.
"MANAGEMENT TEAM" shall mean the persons listed in Schedule 2 of which
the Seller is a part of.
"MODIFIED SHAREHOLDERS AGREEMENT" shall have the meaning assigned to it
in Recital E.
"OPTIONS" shall mean the options to acquire Equity Shares as specified
in Schedule 1.
"OPTION SHARES" shall mean the Equity Shares to be issued by the
Company pursuant to the exercise of the Options.
"PRESENT SHAREHOLDERS AGREEMENT" shall have the meaning assigned to it
in Recital D.
"SECURITIES" shall mean the Shares, Option Shares (to be acquired
pursuant to the exercise of the Options) and Warrants owned by the
Seller as specified collectively in Schedule 1.
"SHARES" shall mean Equity Shares owned by the Seller as specified in
Schedule 1.
"WARRANTS" shall mean the Series A Warrants issued by the Company and
listed in Schedule 1 which can be exercised to acquire Equity Shares.
2. SECURITIES 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
transfer to the Purchaser, Purchaser hereby agrees to purchase from the
Seller, and Seller hereby agrees to sell to the Purchaser, the
Securities and all of the rights, privileges, and obligations that
attach to such Securities, including the right and entitlement to be
allotted shares by the Company pursuant to the 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 Securities, and all
conversion rights and options thereunder and all rights with respect to
the Seller' rights and obligations in relation to the Securities under
the Present Shareholders Agreement and the Modified Shareholders
Agreement.
WIPRO hereby agrees to secure the waiver (if not already obtained) from
the other Investors in respect of any of their rights under the Present
Shareholders Agreement as amended by the Modified Shareholders
Agreement in respect of the Securities agreed to be sold under this
Agreement.
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In consideration of the execution of this Agreement, the Seller, hereby
irrevocably waives as of the date of this Agreement, all or any rights
that the Seller have/may have under the Present Shareholders Agreement
as modified by the Modified 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, then the Seller's waiver shall stand cancelled and
the Purchaser 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 any other 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 4 and the other terms and
conditions of this Agreement, the consideration payable to the
Seller, in accordance with the terms of this Agreement, for
the purchase of the Shares, Option Shares and the Warrants by
Wipro shall be as follows:
(i) Shares will be purchased at the rate of Rupees 98.92
per Share. (ii) Warrants will be purchased at the
rate of Rupees 44.97 per Warrant. (iii) Option Shares
will purchased at the rate of Rupees 98.92 per Option
Share.
(b) The Purchaser shall pay the consideration to Seller at the
Closing by means of mail transfer or bankers' cheque issued in
name of the Seller or to the Seller's order.
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4. CONDITIONS PRECEDENT.
(a) The obligation of the Purchaser, to consummate the transactions
contemplated by Section 5 (Closing) of this Agreement shall be subject
to the fulfillment on or before the Closing Date, by the Seller, of
each of the following conditions unless specifically waived in writing
by the Purchaser;
(i) representations and warranties of Seller set forth in this
Agreement continuing to remain as true and correct as at the
Closing Date.
(ii) execution by the Seller of the Supplemental to the October 18,
2001 Shareholders Agreement with the Purchaser.
(iii) delivery of a letter of confirmation by the Seller to the
Purchaser waving its rights in the Present Shareholders
Agreement as modified by the Modified Shareholders Agreement
in terms of paragraph 3 of Section 2 of this Agreement.
(b) The obligation of the Seller to consummate the transactions
contemplated by Section 5 (Closing) of this Agreement shall be subject
to the fulfillment, on or before the Closing Date, by the Purchaser of
each of the following conditions unless specifically waived in writing
by the Seller:
(i) the representations and warranties of Purchaser set forth in
this Agreement continuing to remain as true and correct as at
the Closing Date; and
(ii) a written confirmation letter by Wipro to Seller confirming
that all other Investors other then AMEX have given their "no
objection" in respect of the sale of Securities by the Seller
to the Purchaser and confirming that neither the tag along
rights nor the rights of first refusal apply in respect of the
sale of the Securities.
(iii) execution of the Call and Put Option Agreement between the
Seller and the Purchaser.
5. CLOSING
(a) Subject to Sections 4(a) and 4(b), the completion of the sale and
purchase of the Securities contemplated by this Agreement (the
"CLOSING") shall take place, on the terms and subject to the conditions
of this Agreement, at a location to be decided by 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(s) representing the Shares along with a duly
executed share transfer form(s) in favor of the Purchaser in
respect of the sale and purchase of the Shares,
(ii) the original Warrant document along with a letter addressed to
the Company informing that Company that the Seller has
transferred the Warrants to the Purchaser and that a fresh
Warrant document be issued to Purchaser thereby recording the
Purchaser as the owner of the Warrants.
(iii) in respect of the Option Shares the notice exercising the
Option ("EXERCISE NOTICE"), an authorisation letter to the
Company requiring delivery of the share
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certificate(s) representing Option Shares to the Purchaser and
to accept the relevant exercise amount for the Options from
WIPRO, and duly executed share transfer form(s) in favour of
the Purchaser in respect of the Option Shares
(iv) a certificate on behalf of Seller, dated the Closing Date
confirming that all of Seller' conditions to the Closing have
been satisfied or waived and that the representations and
warranties of Seller set forth in this Agreement continue to
remain true and correct in all material respects.
(c) At the Closing, Purchaser shall deliver or cause to be delivered to
Seller::
(i) in respect of the Securities , the Purchaser shall deliver to
the Seller the Aggregate Amounts being (A) in respect of the
Shares, an amount equal to the number of Shares multiplied by
the rate per Shares specified in Clause 3(a)(i), (B) in
respect of the Warrants, an amount equal to the number of
Warrants multiplied by the rate per Warrant specified in
Clause 3(a)(ii), and (C) in respect of the Option Shares, an
amount equal to the number of Option Shares multiplied by the
relevant rate per Shares specified in Section 3(a)(iii) less
the relevant exercise price mentioned in Schedule 1 multiplied
by the number of the Option Shares; it being clarified that
the relevant exercise price will be payable under Section 5
(d) to the Company on the order of the Seller.
(ii) an officer's certificate on behalf of Purchaser dated the
Closing Date confirming that all of Purchaser's conditions to
the Closing have been satisfied or waived and that the
representations and warranties of Purchaser set forth in this
Agreement continue to remain true and correct in all material
respects.
(d) Following delivery of the documents specified in Sections 5(b) and (c),
the Purchaser will pay the relevant exercise price (determined pursuant
to Schedule 1) to the Company on behalf of the Seller, take delivery of
the Options Shares certificates or letter of allotment, as the case may
be, and submit the same for approval of transfer of the same by the
Company and delivery of the duly endorsed shares certificates for
Option Shares. The Purchaser shall also submit the Shares and Warrants
to the Company for approval of the transfer and take delivery of the
duly endorsed shares certificates and warrant certificates.
(e) Following delivery of the documents specified in Sections 5(b) and (c),
the Parties will cause the meetings of the Board of Directors of the
Company for the purpose of passing resolutions for the allotment of
Option Shares and for transfer of any or all Equity Shares, Warrants,
and the Parties shall also vote in the affirmative in respect of any
and all resolutions at the meetings of the Board of Directors of the
Company or the shareholders meeting to give effect to the said
allotment and transfers and for effecting the completion of the
transactions contemplated under this Agreement. The obligation stated
in this Clause 5 (e) shall extend in respect of any allotment and/or
transfer of shares, warrants, option shares etc. in favour of the
Purchaser by the other Investors, Management Team members and/or
Optionees. The Company hereby agrees to cause the transfer of the
Securities submitted for transfer.
(f) At the Closing, the Parties will cause the Company to pass resolutions
of the Board as well as of the shareholders of the Company to give
effect to the following;
i) Appointment of five nominee Directors of WIPRO on the board of
directors of the Company.as well as its Subsidiaries
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ii) Appointment of Mr. Vivek Paul as the Chairman of the Company
as well as of the Company's subsidiaries
iii) Approval of the modifications to the Articles of Association
of the Company to reflect the terms of the Supplemental to the
Shareholders Agreement dated October 18, 2001 and calling for
an EGM for the purpose of seeking shareholders approval.
iv) Approval of the change the name of the Company to "Wipro
Spectramind eServices Private Limited" and calling for an EGM
for the purpose of seeking shareholders approval.
6. COVENANTS.
(a) The Seller shall not make, any public announcements with respect to the
transactions contemplated by this Agreement without the prior written
consent of the Purchaser
(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
Securities. For avoidance of doubt, it is clarified that the Seller
shall be responsible for any income or capital gains taxes, in
accordance with applicable laws.
(d) Except as provided in Section 6(c), 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) The Seller acknowledges that in the course of his employment with the
Company and its affiliates the Seller 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 Seller's
services have been and will be of special, unique and extraordinary
value to the Company and its affiliates. Therefore, the Seller 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 Seller receives payments of Salary pursuant to
paragraph 5(b) of the Employment Agreement (the "NONCOMPETE PERIOD"),
Seller 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 Seller's employment, within any geographical
area in which the Company or its subsidiaries engage or plan to engage
in such businesses.
(f) During the Noncompete Period, the Seller 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,
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or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or
any affiliate.
(g) If, at the time of enforcement of the Sections 6(e) to (h), 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.
(h) In the event of the breach or a threatened breach by Seller of any of
the provisions of Sections 6(e) to (h), the Company, in addition and
supplementary to other rights and remedies existing in its favor, may
apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to
enforce or prevent any violations of the provisions hereof (without
posting a bond or other security).
(i) Upon Payment of the consideration by the Purchaser to the Seller under
Section 5, the Seller shall be duty bound to sell and transfer the
Securities to the Purchaser.
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Purchaser that:
(a) the execution, delivery, and performance by the Seller of this
Agreement and the consummation of the transactions
contemplated hereby, including the sale of all or any portion
of the Securities to Purchaser will not 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;
(b) 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
Securities by the Seller or the consummation of the
transactions contemplated by this Agreement;
(c) subject to the provisions of the Present Shareholders
Agreement as modified by the Modified Agreement and further
subject to the Purchaser providing the no objection letter
pursuant to Section 4(b)(ii), the Seller is the sole legal,
beneficial, and record owner of the Shares, Options and
Warrants owned by him/her with all rights with respect
thereto, with full and unrestricted power, , to sell, convey,
transfer, assign, endorse, and otherwise deliver the same and
related rights to Purchaser as provided in this Agreement.
(d) the Seller 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.
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 Shares to the extent
expressly stated herein. The Parties agree and affirm that the Shares
are being sold and
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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 two (2) years from the Closing Date.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller that:
(a) the Purchaser is a company duly organized, validly existing,
and in good standing under the laws of India;
(b) the Purchaser 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 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;
(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 the Purchaser
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) the Purchaser 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.
The representations and warranties of Purchaser set forth in this
Agreement shall survive the Closing for a period of two (2) years.
9. 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
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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 by 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.
10. 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:
<TABLE>
<S> <C>
To Seller: At the address mentioned in the title of this Agreement.
To Purchaser: Wipro Limited,
Doddakannelli,
Sarjapur Road,
Bangalore 560 035
Att'n: Corporate Executive Vice President Finance
Fax: (91) 80 844 0051
</TABLE>
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.
11. TERMINATION
This Agreement and the transactions contemplated hereby may be
terminated at any time by either Party if the Closing shall not have
occurred on or before 31 August 2002 (or such later date as may be
mutually agreed in writing by the Parties), by delivering written
notice thereof to the other Party. Upon such termination neither Party
shall have any further rights or obligations under this Agreement
except such rights and obligations as by their express terms survive
the expiration or earlier termination of this Agreement.
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)
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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
which shall not be unreasonably withheld; provided, however, that
Purchaser shall have the right, without the consent of Seller and
without being released from its obligations under this Agreement, to
assign and transfer its rights and obligations under this Agreement
with respect to the acquisition of either or all of the Securities to a
nominee of its choice. Subject to the foregoing limitation of this
Section 12(b), the terms and provisions of this Agreement and the
respective rights and obligations of Purchaser and Seller shall be
binding upon, and inure to the benefit of, their respective successors
and permitted assigns.
(c) 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.
(d) 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.
(e) Limitation of Liability
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.
(f) 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.
(g) Survival
The provisions of this Section 12 shall survive the expiration or
earlier termination of this Agreement.
(h) Counterparts
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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.
(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.
Page 12 of 15
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement effective the date
first mentioned above.
SIGNED BY )
SELLER BEING )
IN THE PRESENCE OF )
SIGNED BY )
FOR AND ON BEHALF OF )
WIPRO LIMITED )
IN THE PRESENCE OF )
SIGNED BY )
FOR AND ON BEHALF OF )
SPECTRAMIND ESERVICES PRIVATE LIMITED )
IN THE PRESENCE OF )
Page 13 of 15
<PAGE>
SCHEDULE 1
TO THE SECURITIES SALE AND PURCHASE AGREEMENT-
A. DETAILS OF THE SECURITIES
SHARES
NUMBER SHARE CERTIFICATE NO.
WARRANTS
[ ] SERIES A WARRANTS
OPTION SHARES
[ ] OPTIONS WITH EXERCISE PRICE OF RUPEES 12.70 PER OPTION.
[ ] OPTIONS WITH EXERCISE PRICE OF RUPEES 30.92 PER OPTION.
B. AGGREGATE AMOUNTS DETERMINATION
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
SECURITIES NUMBER (A) RATE PER SECURITY AS AMOUNT = A*B
MENTIONED IN SECTION 3 (B)
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SHARES
WARRANT A
OPTION SHARES
---------------------------------------------------------------------------------------------------
SUB-TOTAL (C)
---------------------------------------------------------------------------------------------------
LESS - EXERCISE PRICE
OPTIONS AT 12.70
OPTIONS AT 30.92
---------------------------------------------------------------------------------------------------
SUB-TOTAL (D)
---------------------------------------------------------------------------------------------------
AGGREGATE AMOUNTS (C-D)
---------------------------------------------------------------------------------------------------
</TABLE>
Page 14 of 15
<PAGE>
SCHEDULE 2
TO THE SECURITIES SALE AND PURCHASE AGREEMENT-
MANAGEMENT TEAM (13 MEMBERS)
Page 15 of 15