Wipro Ltd. Contracts
Sample Business Contracts
Call and Put Option Agreement - Wipro Ltd., Spectramind eServices Private Ltd. and Senior Management-Shareholders of Spectramind eServices Private Ltd.
Shareholder Forms
CALL AND PUT OPTION AGREEMENT
THIS CALL AND PUT OPTION AGREEMENT - ("AGREEMENT") is made on this the 17th day
of July, 2002
A. ___________, son 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. ChrysCapital I, LLC, Mauritius ("CHRYSCAPITAL'), Housing Development and
Finance Corporation Limited ("HDFC"), Optionee 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.
C ChrysCapital, HDFC, Optionee, 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AGREEMENT") which superceded and replaced in its entirety the Old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.
D. ChrysCapital, HDFC, Optionee, WIPRO, American Express Travel Related
Services Company, Inc ("AMEX"), Spectramind Limited, Mauritius,
Spectramind Limited, Bermuda and the Company had entered into a Modified
Shareholders Agreement dated as of 12th February, 2002 which partly
amended the Present Shareholders Agreement ("MODIFIED SHAREHOLDERS
AGREEMENT").
E. 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").
F. Optionee and Wipro desires to execute a Call and Put Option over the
Option Shares
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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
"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.
"INVESTORS" means, collectively, ChrysCapital, HDFC, WIPRO, AMEX, Mr.
Raman Roy,
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Spectramind Limited, Mauritius, Spectramind Limited, Bermuda, and the
Management Team.
"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
"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
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Shares which are allotted at different dates, Optionee may issue one or
more Put Notices during the relevant Call/Put Option Period. Provided
further that, notwithstanding anything to the contrary contained in this
Agreement, the right of the Optionee to sell all or any of the Optionee's
Option Shares by a Put Notice under this Section 2.2 shall be available
only in respect of the Option Shares which may be acquired by the Optionee
pursuant to the exercise of the Employee Stock Option set out in Part 2 of
Schedule 1.
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.
2.6 In the event Call Notice(s) are not issued in respect of all of the Option
Shares which may be acquired by the Optionee pursuant to the exercise of
the Employee Stock Option set out in Part 1 of Schedule 1 during the
applicable Call/Put Option Period, then the Optionee shall not have the
right to sell the remaining Option Shares to third party without giving to
Wipro a right of first refusal in respect of such remaining Option Shares.
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
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(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.
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.
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(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 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.
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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.
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:
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
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
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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.
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
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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 )
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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