Exhibit 2.3
SHARE PURCHASE AGREEMENT
by and among
XXXX XXXXX,
XXXXX XXXXX,
QUINTANT SERVICES LIMITED
And
iGATE CORPORATION
_______________________
Dated July 30, 2003
_______________________
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is made on this the
30/th/ day of July, 2003:
BY AND AMONG
Xxxxx Xxxxx, a national of the United States of America, aged 54 years and
residing at 0000, Xxxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000, XXX ("IS");
Xxxx Xxxxx, a national of the United States of America, aged 59 and residing at
0000, X. Xxxxx Xxxxxx Xxxx #0, Xxxxxxxxxx, XX 00000, XXX ("LH", and LH and IS,
together, the "Selling Shareholders");
Quintant Services Limited, a company incorporated under the [Indian] Companies
Act, 1956, as amended (the "Companies Act") and having its registered office at
93/A, 4th B Cross, 0xx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 560 095,
Karnataka, India ("Company"); and
iGATE Corporation, a Pennsylvania corporation with its principal place of
business at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, XXX ("iGATE"
or the "Purchaser").
RECITALS
A. WHEREAS, the Company is, directly and through its subsidiaries, engaged
in the business of offering financial services business process
outsourcing (the "Company Business");
B. WHEREAS, Thirteen Thousand Three Hundred and Thirty-Three (13,333) ADRs
of the Company are held by IS directly, or by the Bank of New York, a
banking corporation established under the laws of the State of New York,
and having its principal corporate trust office at 000, Xxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXX, ("BONY") in trust for the benefit of IS,
pursuant to the escrow and voting agreement dated January 23, 2003
entered into among, AS, KM, IS, LH, the Company and BONY, (the "BONY
Escrow Agreement" and such ADRs, the "IS ADRs");
C. WHEREAS, One Thousand Six Hundred and Sixty-Seven (1,667) ADRs of the
Company are held by LH directly, or by BONY in trust for the benefit of
LH, pursuant to the BONY Escrow Agreement ("LH ADRs" and together with
the IS ADRs, the "Sale ADRs");
D. WHEREAS, iGATE Global Solutions Limited, a company incorporated under the
Companies Act and having its registered office at Xx. 0, Xxxx Xxxx,
Xxxxxxxxxxx, Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx Extension, Xxxxxxxxx 000 000,
Xxxxxxxxx, Xxxxx
("iGATE Global") has entered into certain agreements with T. G. Ramesh,
an Indian national aged 36 years residing at Xx. 0, Xxxxx Xxxxxx,
Xxxxxxxxxx Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 560 066, Karnataka, India
("TGR"), GMR Infrastructure Limited, a company incorporated under the
Companies Act and having its registered office at 6-3-866/ X0,
Xxxxxxxxxx, Xxxxxxxx, Xxxxxxxxx - 000 000, Xxxxxx Xxxxxxx, Xxxxx ("GMR")
and PM Ventures Private Limited, a company incorporated under the
Companies Act and having its registered office at XXXX Xxxxx, 00/0 Xxxxxx
Xxxx, Xxxxxxxxx 560 025, Karnataka, India ("PM Ventures"), relating to
the purchase of the fully paid up Shares held by each of such parties.
E. WHEREAS, the Selling Shareholders desire to sell to the Purchaser, and
the Purchaser desires to acquire from the Selling Shareholders, the Sale
ADRs, upon the terms and subject to the conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein and other valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions set forth herein, each of the Purchaser, the Selling
Shareholders and the Company hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In this Agreement, the following terms shall have the
following meanings, unless the context otherwise requires:
"Action" means any claim, demand, litigation, action, suit,
investigation, proceeding, hearing, complaint, assessment, fine, penalty,
inquiry or judgement, administrative or judicial, at law or in equity;
"ADRs" means American Depositary Receipts issued pursuant to the Deposit
Agreement, each of which represents one (1) underlying Share;
"Affiliate" with respect to a specified Person, means any other Person
(a) directly or indirectly controlling, controlled by or under common control
with such specified Person; or (b) who is a Relative of such a Person or their
Affiliate; provided, however, that, for purposes of this definition, the terms
"controlling", "controlled by" or "under common control with" mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by Contract or otherwise, or the power to elect
or appoint a majority of the directors, managers, partners or other individuals
exercising similar authority with respect to such Person;
"Agreement" has the meaning assigned to such term in the preamble to this
Agreement;
"Beneficiary" has the meaning assigned to such term in Section 9.3(a);
"BONY" has the meaning assigned to such term in Recital B;
"BONY Escrow Agreement" has the meaning assigned to such term in Recital
B;
"Closing" has the meaning assigned to such term in Section 3.1;
"Closing Date" has the meaning assigned to such term in Section 3.1;
"Companies Act" has the meaning assigned to such term in the preamble to
this Agreement;
"Company" has the meaning assigned to such term in the preamble to this
Agreement;
"Company Assets" means the assets, properties, rights and interests of
every kind, nature and description, tangible or intangible, and wherever
situated and by whomsoever possessed or held, that are owned, used, occupied or
held by or for the benefit of the Company or any of its subsidiaries;
"Company Business" has the meaning assigned to such term in Recital A to
this Agreement;
"Continuing Founders" means each of Xxxxxxxx Xxxxxx, a national of the
United States of America aged 39 years residing at 00000, Xxxx Xxx, Xxxxxxx
Xxxxxxxxxx 00000 XXX ("PM"), Xxxx Xxxxx, an Indian national aged 41 years
residing at 00000, Xxxxx Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxx 00000 XXX ("AS") and
Xxxxx Xxxxxxxx, an Indian national aged 38 years residing at 000 Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000 XXX ("KM");
"Contract" means any contract, agreement, commitment, obligation,
undertaking or understanding, including, without limitation, any note, bond,
mortgage, indenture, license or lease;
"Damages" means all or any damages, claims, penalties, fines, costs,
amounts paid in settlements, liabilities (including liabilities for Taxes and
liabilities and costs associated with the release or discharge of any
Encumbrances), obligations, losses and expenses, and fees, including, without
limitation, court costs, attorney's fees, disbursements and expenses in relation
thereto;
"Depository" means the Deutsche Bank Trust Company Americas, acting
through its office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, XXX;
"Deposit Agreement" means the deposit agreement dated January 23, 2003
among the Company, the Depository, and the holders, owners and beneficial owners
of restricted ADRs;
"Dispute" has the meaning assigned to such term in Section 10.3;
"Encumbrances" means any mortgage, right of way, pledge, equitable
interest, prior assignment, hypothecation, security interest, encumbrance, title
defect, title retention agreement, voting trust agreement, interest, option,
lien, charge, easement, encroachment or other similar condition, commitment,
restriction or limitation of any nature whatsoever, including restriction on
use, voting, transfer, receipt of income or exercise of any other attribute of
ownership;
"Escrow Termination Agreement" means the agreement terminating the BONY
Escrow Agreement to be entered into among AS, KM, IS, LH, the Company and BONY
containing such terms as are mutually acceptable to the parties thereto;
"GMR" has the meaning assigned to such term in Recital D;
"Governmental Authority" means any government, regulatory authority,
governmental department, agency, commission, board, tribunal or court or other
law, rule or regulation-making entity having or purporting to have jurisdiction
on behalf of any nation or province or state or other subdivision thereof, or
any municipality, district or other subdivision thereof;
"iGATE" has the meaning assigned to such term in the preamble to this
Agreement;
"iGATE Global" has the meaning assigned to such term in Recital D;
"IS" has the meaning assigned to such term in the preamble to this
Agreement;
"IS ADRs" has the meaning assigned to such term in Recital B;
"Law" means any law, statute, code, ordinance, regulation or rule of any
Governmental Authority;
"LH" has the meaning assigned to such term in the preamble to this
Agreement;
"LH ADRs" has the meaning assigned to such term in Recital C;
"Material Adverse Effect" means a material adverse effect (a) on the
business, condition (financial or otherwise), liabilities, assets or operations
(or the results of operations) of the Company or the Company Business, or (b) on
the ability of the Selling Shareholders or the Company to consummate the
transactions contemplated by the Transaction Documents;
"Outside Date" has the meaning assigned to such term in Section 8.1(b);
"Party" means party to this Agreement;
"Person" means any individual, sole proprietorship, corporation, company,
partnership, limited liability company, joint venture, unincorporated society,
Governmental Authority, association or trust or any other entity or
organisation;
"PM Ventures" has the meaning assigned to such term in Recital D;
"Purchase Price" has the meaning assigned to such term in Section 2.2;
"Purchaser" has the meaning assigned to such term in the preamble to this
Agreement;
"Relative" has the meaning assigned to such term in the Companies Act;
"Sale ADRs" has the meaning assigned to such term in Recital C to this
Agreement;
"Selling Shareholders" has the meaning assigned to such term in the
preamble to this Agreement;
"Share" means an equity share of the Company of par value Rs. 10;
"Shareholders Agreement" means the shareholders agreement dated January
24, 2003 by and among IS, LH, the Continuing Founders, TGR, GMR, PM Ventures and
the Company, and the amendment agreement dated January 24, 2003 among the same
parties;
"Tax" shall mean, without limitation, all taxes, duties, fees, premiums,
assessments, levies and other charges of any kind whatsoever imposed by any
Governmental Authority together with all interest, penalties, fines, additions
to tax or other additional amounts imposed in respect thereof;
"Termination Agreement" means the Agreement, in the form attached hereto
as Exhibit A, terminating the Shareholders Agreement;
"TGR" has the meaning assigned to such term in Recital D;
"Third Party Claim" has the meaning assigned to such term in Section
9.3(a);
"Transaction Documents" means this Agreement and all the deeds,
agreements, certificates, guarantees, documents and instruments contemplated by
this Agreement; and
1.2 Headings. The headings and subheadings in this Agreement are
included for convenience and identification only and are not intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof in any manner whatsoever.
1.3 Interpretation; Number and Gender. The definitions in Section 1.1
shall apply equally to both the singular and plural form of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter form. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
Unless the context otherwise requires, (a) all references to Articles, Sections,
paragraphs, clauses, Exhibit and Schedules are to Articles, Sections,
paragraphs, clauses, Exhibit and Schedules in this Agreement; and (b) the terms
"herein," "hereof," "hereto", "hereunder", "hereinafter" and words of similar
import refer to this Agreement as a whole.
1.4 Schedules. The Schedules and Exhibit to this Agreement, as listed
below, form an integral part of this Agreement:
Schedules Description
Schedule 4.1 Number of ADRs owned by each Selling Shareholder
Exhibit A Form of Termination Agreement
ARTICLE II
SALE AND PURCHASE OF ADRs
2.1 Purchase of Sale ADRs. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Selling Shareholders
shall sell to the Purchaser, and the Purchaser shall purchase from the Selling
Shareholders the Sale ADRs, free and clear of any Encumbrances.
2.2 Purchase Price and Payment. In full consideration of the purchase
of the Sale ADRs by the Purchaser from the Selling Shareholders, the Purchaser
shall pay at the
Closing, to the Selling Shareholders, in cash, a total purchase price of United
States Dollars Nine Hundred Thousand (US$ 900,000) (the "Purchase Price") to be
divided between the Selling Shareholders in the following percentage:
IS : United States Dollars Eight Hundred Thousand (US$ 800,000)
LH : United States Dollars One Hundred Thousand (US$ 100,000)
The cash payment pursuant to this Section 2.2 shall be made in
immediately available funds by bank wire transfer to such accounts designated in
writing for this purpose by each Selling Shareholder at least two business days
prior to the Closing Date.
2.3 Stamp Duty and Capital Gains.
(a) Any stamp duty imposed under applicable Laws relating to the
sale of the Sale ADRs from the Selling Shareholders to the Purchaser shall be
paid by the Purchaser; and
(b) Any Tax payable under applicable Laws, including as a result
of capital gains, if any, as a result of the sale to the Purchaser of the Sale
ADRs shall be paid by the Selling Shareholders.
ARTICLE III
CLOSING AND DELIVERIES
3.1 Closing. Subject to the terms and conditions of this Agreement,
the closing of the sale by the Selling Shareholders of the Sale ADRs to the
Purchaser (the "Closing") shall take place two (2) business days after the date
on which all of the conditions set forth in Article VII are satisfied or
otherwise waived in accordance with the terms of this Agreement or on such other
later date as is unanimously agreed among the Purchaser and the Selling
Shareholder in writing. The date on which the Closing occurs shall be referred
to in this Agreement as the "Closing Date". The Closing shall take place at such
place and at such time as may be mutually agreed upon by the parties.
3.2 Deliveries by the Selling Shareholders. At or prior to the
Closing, in addition to such other actions as may be provided for herein, the
Selling Shareholders shall deliver or cause to be delivered to the Purchaser
good and sufficient certificates for the Sale ADRs, duly assigned in blank or
accompanied by duly executed blank stock powers.
3.3 Deliveries by the Purchaser. At the Closing, the Purchaser shall
deliver or cause to be delivered to the Selling Shareholders, the following:
(a) The Purchase Price payable pursuant to Section 2.2; and
(b) The certificate required to be delivered by the Purchaser
pursuant to Section 7.2(d).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING SHAREHOLDERS
4.1 Representations and Warranties of Selling Shareholders. Each
Selling Shareholder hereby represents and warrants severally to and for the
benefit of the Purchaser, on the date hereof and as of the Closing Date, that:
(a) Title to Sale ADRs. Each of the Selling Shareholders owns,
beneficially, legally and of record, the number of ADRs set forth opposite their
respective names on Schedule 4.1, free and clear of all Encumbrances except
under the Shareholders Agreement and the BONY Escrow Agreement (whereby ADRs
were issued to BONY to be held in trust for the benefit of the Selling
Shareholders pursuant to the BONY Escrow Agreement). At the Closing, the
Purchaser will acquire good and valid title to the Sale ADRs, free and clear of
any Encumbrances.
(b) Authority; Execution. Each of the Selling Shareholders has full
power and authority to execute and deliver the Transaction Documents, to perform
their respective obligations and to consummate the transactions contemplated by
the Transaction Documents. Each of the Transaction Documents have been duly and
validly executed and delivered by each of the Selling Shareholders and
constitute a valid and binding obligation of each of the Selling Shareholders
and will be enforceable against each of the Selling Shareholders in accordance
with their respective terms.
(c) Incorporation of the Company. The Company is a company duly
incorporated under the Laws of India and has the requisite corporate power and
authority to carry on its business as it is presently conducted.
(d) Consents and Approvals. No consents or approvals of, or filings or
registrations with, any Governmental Authority or other person are necessary in
connection with (i) the execution and delivery by each of the Selling
Shareholders of any of the Transaction Documents, (ii) the performance by each
of the Selling Shareholders of its obligations under the Transaction Documents
and (iii) the consummation by each of the Selling Shareholders of the
transactions contemplated by the Transaction Documents.
4.2 Representations and Warranties of the Company. The Company hereby
represents and warrants to and for the benefit of the Purchaser, on the date
hereof and as of the Closing Date, that:
(a) Authority; Execution. The Company has full power and authority to
execute and deliver the Transaction Documents, to perform its obligations and to
consummate the transactions contemplated by the Transaction Documents. Each of
the Transaction Documents have been duly and validly executed and delivered by
the Company and constitutes a valid and binding obligation of the Company and
will be enforceable against the Company in accordance with their respective
terms.
(b) Incorporation of the Company. The Company is a company duly
incorporated under the Laws of India and has the requisite corporate power and
authority to carry on its business as it is presently conducted.
(c) Consents and Approvals. No consents or approvals of, or filings or
registrations with, any Governmental Authority or other person are necessary in
connection with (i) the execution and delivery by the Company of any of the
Transaction Documents, (ii) the performance by the Company of its obligations
under the Transaction Documents and (iii) the consummation by the Company of the
transactions contemplated by the Transaction Documents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to and for the benefit of
the Selling Shareholders, on the date hereof and as of the Closing, that:
5.1 Organization of the Purchaser. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Pennsylvania, and has full corporate power and authority to carry on its
business as it is now being conducted.
5.2 Authority; Execution. The Purchaser has full power and authority to
execute and deliver the Transactions Documents, and subject to the receipt of
the approval of its board of directors, to perform its obligations under the
Transaction Documents and to consummate the transactions contemplated by the
Transaction Documents. Subject to the receipt of the approval of its board of
directors, the execution and delivery by the Purchaser of each of the
Transaction Documents, the performance by the Purchaser of its obligations
pursuant to the Transaction Documents and the consummation by the Purchaser of
the transactions contemplated by the Transaction Documents have been duly and
validly authorized and approved by all requisite action on the part of the
Purchaser. Each of the Transaction Documents have been duly and validly executed
and delivered by the Purchaser and, assuming the due authorization, execution
and delivery of this Agreement by each of the Company and the Selling
Shareholders, constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms.
5.3 No Violation. Neither the execution and delivery of any of the
Transaction Documents by the Purchaser, nor the consummation by the Purchaser of
the transactions contemplated pursuant to the Transaction Documents, nor
compliance by the Purchaser with any of the terms or provisions contained in the
Transaction Documents, will (a) violate any provisions of the charter documents
of the Purchaser, or (b) violate any Law applicable to the Purchaser.
5.4 Consents and Approvals. No consents or approvals of, or filings or
registrations with, any Governmental Authority or other Person are necessary in
connection with (a) the execution and delivery by the Purchaser of any of the
Transaction Documents, (b) the performance by the Purchaser of its obligations
under the Transaction Documents and (c) the consummation by the Purchaser of the
transactions contemplated by the Transaction Documents.
5.5 Brokers, Finders and Agents. The Purchaser is not directly or
indirectly obligated to anyone acting as a broker, finder or in any other
similar capacity in connection with this Agreement or the transactions
contemplated hereby.
5.6 Full Disclosure. The representations and warranties of the
Purchaser in this Agreement do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which they were or
are made, not false or misleading.
ARTICLE VI
PRE-CLOSING, CLOSING AND POST-CLOSING COVENANTS
6.1 Agreement to Comply.
(a) Each Party will use its reasonable best efforts to satisfy or
cause to be satisfied all of the conditions precedent to the other Party's
obligations hereunder.
(b) Each Party will give the other Parties prompt written notice
of any material change in any of the information contained in the
representations and warranties made in this Agreement that occur prior to the
Closing Date; provided, however, that any change in the information contained in
the representations and warranties will not relieve such Party of any
obligations or liabilities hereunder if such material changes result in a breach
of the representations and warranties contained in this Agreement.
6.2 No Solicitation. From the date hereof through and until the earlier
of the termination of this Agreement pursuant to Article VIII and the Closing,
none of the Company, the Selling Shareholders or any of their respective
employees, officers, agents, advisors or representatives shall, directly or
indirectly, do any of the following without the prior written consent of the
Purchaser:
(a) entertain, solicit, initiate, discuss or encourage any
inquiries, proposals or offers or indications of interest from any Person other
than the Purchaser relating to any acquisition of all or any part of the Sale
ADRs or all or substantially all of the Company Assets or the Company Business
or a merger involving the Company. The Company and the Selling Shareholders
agree to promptly notify the Purchaser if any such proposal or offer or any
inquiry or contact with any Person with respect to any of the foregoing is
sought to be made; and
(b) with respect to any effort or attempt by any other Person to
do or attempt to do anything contemplated by Section 6.2(a), (i) participate in
any discussions or negotiations; (ii) furnish to any other Person any
information with respect to, or afford access to the properties, books or
records of or relating to, the Company, the Company Assets or the Company
Business; or (iii) otherwise cooperate in any way with, or assist or participate
in, or facilitate or encourage any such effort.
6.3 Press Releases and Disclosure. Except as otherwise required by Law,
none of the Selling Shareholders or the Company (nor any of their respective
Affiliates) shall issue or cause publication of any press release or other
announcement or public communication with respect to this Agreement or other
Transaction Documents or the transactions contemplated hereby or thereby, or
otherwise disclose this Agreement or other Transaction Documents or the
transactions contemplated hereby or thereby to any third party (other than the
attorneys, advisers and accountants to the parties to this Agreement) without
the written consent of the Purchaser. If any of the Selling Shareholders or the
Company is required by
Law to issue or cause the issuance of any public announcement or other
communication with respect to this Agreement or other Transaction Documents or
the transactions contemplated hereby or thereby, such party shall to the fullest
extent possible notify the Purchaser in writing at least two (2) business days
prior to such announcement or communication and such parties shall be given the
opportunity to comment on such announcement or communication prior to its
release.
6.4 Further Assurances. The Selling Shareholders will use their best
efforts to implement the provisions of the Transaction Documents, and for such
purpose the Selling Shareholders, at the request of the Purchaser, at or for a
period of fifteen (15) days after the Closing, will, without further
consideration, take all such actions as the Purchaser may reasonably deem
necessary or desirable to implement any provision of this Agreement and other
Transaction Documents or to more effectively transfer, convey and assign to the
Purchaser good and marketable title to the Sale ADRs, free and clear of all
Encumbrances. The Purchaser will use its best efforts to take all such other
actions as the Selling Shareholders may reasonably deem desirable to implement
any provision of this Agreement.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to the Purchaser's Obligations. The obligation of the
Purchaser to consummate the transactions provided for by this Agreement is
subject to the satisfaction or the written waiver by the Purchaser, on or prior
to the Closing Date, of each of the following conditions:
(a) Representations and Warranties. Each of the representations
and warranties of the Selling Shareholders made in this Agreement shall be true
and correct on the date hereof and shall be true and correct in all material
respects as of the Closing Date.
(b) Covenants. Each of the Selling Shareholders shall have
performed and complied with all covenants, obligations and agreements required
to be performed or complied with by each such Party at or prior to the Closing
Date.
(c) Material Adverse Effect. Since the date hereof, there shall
have occurred no event which has had or which could reasonably be expected to
have a Material Adverse Effect and there shall have been no discovery of any
such event.
(d) No Proceeding, Litigation or Order. To the knowledge of the
Selling Shareholders, no Action challenging the legality of and no Action or
Order seeking to restrain, prohibit or materially modify, the transactions
provided for in this Agreement shall have been instituted and not settled or
otherwise terminated.
(e) Acquisition of Shares held by GMR and PM Ventures. iGATE
Global shall have completed the acquisition of the Shares owned by GMR and PM
Ventures pursuant to the terms of the share purchase agreement dated the date
hereof among iGATE Global, GMR, PM Ventures and the Company.
(f) No Adverse Legislation. No Law, order, injunction or decree
shall have been enacted, entered, promulgated or enforced by any Governmental
Authority that
prohibits, restricts or makes illegal the consummation of the transactions
contemplated hereby.
(g) Termination of Registration Rights Agreement. The
Registration Rights Agreement among the Company, Xxxxxx Xxxxxx (as custodian for
Xxxxx Xxxxxx and Xxxxx Xxxxxx), AS, LH, IS and KM, dated January 27, 2003 shall
have been terminated pursuant to an agreement containing such terms as are
mutually acceptable to the parties such agreement.
7.2 Conditions to the Obligations of the Selling Shareholders. The
obligations of the Selling Shareholders to consummate the transactions provided
for by this Agreement are subject to the satisfaction by the Purchaser or the
written waiver by the Selling Shareholders, on or prior to the Closing Date, of
each of the following conditions:
(a) Representations and Warranties. Each of the representations
and warranties of the Purchaser made in this Agreement shall be true and correct
both on the date hereof and as of the Closing Date.
(b) Covenants. Purchaser shall have performed and complied with
all covenants, obligations and agreements required to be performed or complied
with by it at or prior to the Closing Date in all material respects.
(c) No Proceeding, Litigation or Order. To the knowledge of the
Purchaser, no Action challenging the legality of and no Action or Order seeking
to restrain, prohibit or materially modify, the transactions provided for in
this Agreement shall have been instituted against the Purchaser and not settled
or otherwise terminated.
(d) Certificate of the Purchaser. At the Closing, the Purchaser
shall have delivered to the Selling Shareholders a certificate executed by a
duly authorized officer of the Purchaser and dated the Closing Date, to the
effect that the conditions specified in Section 7.2(a), (b) and (c) have been
satisfied.
(e) No Adverse Legislation. No Law, order, injunction or decree
shall have been enacted, entered, promulgated or enforced by any Governmental
Authority that prohibits, restricts or makes illegal the consummation of the
transaction contemplated hereby.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the Closing:
(a) By written consent of each of the Selling Shareholders and
the Purchaser;
(b) By any of the Purchaser or the Selling Shareholders if the
Closing shall not have occurred on or before September 15, 2003 (the "Outside
Date"); provided, however, that the right to terminate this Agreement pursuant
to this Section 8.1(b) shall not be available to any Party whose breach of this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date; and
(c) By any of the Selling Shareholders or the Purchaser if a
condition to its obligation to close set forth in Article VII cannot be
satisfied prior to the Outside Date; provided, however, that the right to
terminate this Agreement pursuant to this Section 8.1 (c) shall not be available
to any Party whose breach of this Agreement has been the cause of, or resulted
in, the failure to satisfy a closing condition set forth in Article VII prior to
the Outside Date.
8.2 Effect of Termination. In the event of termination of this
Agreement pursuant to Section 8.1, no Party shall have any liability or any
further obligation to any other Party, except as provided in this Section 8.2.
Nothing herein shall release, or be construed as releasing, any Party hereto
from any liability or damage to any other Party hereto arising out of the
breaching party's breach in the performance of any of its covenants, agreements,
duties or obligations arising under this Agreement. The obligations of the
parties to this Agreement under Sections 10.2, 10.3, 10.5 and this Section 8.2
shall survive any termination of this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by the Selling Shareholders.
(a) From and after the Closing, subject to the further provisions
of this Article IX, the Selling Shareholders shall severally indemnify, defend
and hold the Purchaser, its Affiliates and their respective directors, officers,
representatives, employees, agents, successors and permitted assigns, harmless
from and against any and all Damages incurred by any of them as a result of,
arising from, or in connection with, or relating to (i) any matter inconsistent
with, or any breach of, the representations and/or warranties made by any of the
Selling Shareholders in any Transaction Document; and/or (ii) the failure of
performance (in whole or in part) by the Selling Shareholders of any of their
covenants, obligations or agreements contained in any Transaction Document.
(b) Notwithstanding anything contained in Section 9.1(a), the
maximum liability of each Selling Shareholder shall not exceed twenty five
percent (25%) of the Purchase Price paid to each such Selling Shareholder.
9.2 Indemnification by the Purchaser. From and after the Closing,
subject to the further provisions of this Article IX, the Purchaser shall
indemnify, defend and hold the Selling Shareholders and its directors, officers,
representatives, employees, agents and successors harmless from and against any
and all Damages incurred by any of them as a result of, arising from, or in
connection with, or relating to (a) any matter inconsistent with, or any breach
of, the representations and/or warranties made by the Purchaser in any
Transaction Document; and/or (b) any breach or failure of performance (in whole
or in part) by the Purchaser of any obligation, covenant or agreement contained
in any Transaction Document.
9.3 Notice of Claim; Right to Participate in and Defend Third Party
Claim.
(a) If any indemnified party receives notice of any Action in
respect of which indemnification may be sought under this Agreement (a "Third
Party Claim"), and the indemnified party intends to seek indemnification under
this Agreement, then the indemnified party (the "Beneficiary") promptly shall
provide the indemnifying party with written notice
of the Third Party Claim and the relevant facts and circumstances to the extent
known; provided, however, that if such claim is under Section 9.1 or 9.2, notice
of the Third Party Claim must be delivered prior to the expiration of the
representation or warranty as described in Section 9.5 of this Agreement. The
failure by the Beneficiary to notify an indemnifying party of a Third Party
Claim shall not relieve the indemnifying party of any indemnification
responsibility under this Article IX, unless such failure materially prejudices
the ability of the indemnifying party to defend such Third Party Claim.
(b) The indemnifying party shall have the right, at its option
and expense, to participate in the defence of such Third Party Claim, but not to
control the defence, negotiation or settlement thereof (which control shall at
all times rest with the Beneficiary), unless the indemnifying party has a
defence or counterclaim in relation to such Third Party Claim which the
Beneficiary is not entitled to assert (to the extent necessary to assert and
maintain such defence or counterclaim), and the indemnifying party furnishes
satisfactory evidence of its financial ability to indemnify the Beneficiary, in
which case the indemnifying party may assume such control through counsel of its
choice (which counsel shall be satisfactory to the Beneficiary) at its own
expense; provided that the Beneficiary shall continue to have the right to be
represented, at its own expense, by counsel of its choice in connection with the
defence, negotiation or settlement of such Third Party Claim.
(c) If the indemnifying party does not assume control of the
defence of such Third Party Claim, the entire defence, negotiation or settlement
of such Third Party Claim by the Beneficiary shall be deemed to have been
consented to by, and shall be binding upon, the indemnifying party as fully as
though the indemnifying party alone had assumed the defence thereof and a
judgement had been entered in such Third Party Claim in respect of such
settlement or judgement.
(d) If the indemnifying party does assume control of the defence
of such Third Party Claim, it shall not, without the prior written consent of
the Beneficiary, settle such Third Party Claim or consent to entry of any
judgement relating thereto which does not include as an unconditional term the
giving by the claimant to the Beneficiary a release from all liability in
respect of such Third Party Claim.
(e) The parties to this Agreement agree to cooperate fully with
each other in connection with the defence, negotiation or settlement of any such
Third Party Claim.
9.4 Notice of Non-Third Party Claims. Any indemnifiable claim under
this Agreement that is not a Third Party Claim must, in order to be valid and
effective hereunder, be asserted by the indemnified party by prompt delivery of
written notice thereof to the indemnifying party, provided that if such claim is
under Section 9.1(a) or 9.2(a), it must be delivered prior to the expiration of
the pertinent representation or warranty as provided in Section 9.5 of this
Agreement.
9.5 Survival of Representations and Warranties.
(a) All the representations and warranties contained in this Agreement,
except the representations and warranties of the Selling Shareholders in respect
of title to the Sale ADRs shall survive until the date one (1) year following
the Closing Date. No claim for indemnification relating to any breach of, or any
matter inconsistent with, such
representations and warranties can be made after such date (irrespective of
whether the breach or inconsistency was found during such period).
(b) The representations and warranties of the Selling Shareholders
contained in Section 4.1 shall survive indefinitely and any claim for
indemnification relating to any breach of, or any matter inconsistent with, such
representations and warranties may be made at any time.
9.6 Right to Indemnification Not Affected by Knowledge. The right to
indemnification, payment of Damages or other remedy based on the
representations, warranties, covenants, obligations and agreements contained in
this Agreement shall not be affected by any investigation conducted with respect
to, or any knowledge acquired (or capable of being acquired) at any time,
whether before or after the Closing Date, with respect to the accuracy or
inaccuracy of or compliance or non-compliance with, any such representation,
warranty, covenant, obligation or agreement.
9.7 Subrogation. After any indemnification payment is made to any
Indemnified Party pursuant to this Article IX, the indemnifying party shall, to
the extent of such payment, be subrogated to all rights (if any) of the
Indemnified Party against any third party in connection with the Damages to
which such payment relates. Without limiting the generality of the preceding
sentence, any indemnified party receiving an indemnification payment pursuant to
the preceding sentence shall execute, upon the written request of the
indemnifying party, any instrument reasonably necessary to evidence such
subrogation rights.
ARTICLE X
MISCELLANEOUS
10.1 Amendments; No Waiver. Neither this Agreement nor any provision
hereof shall be amended or modified in any manner except by an instrument in
writing which refers to this Agreement and is executed by each of the parties
hereto. Any waiver by any Party of any breach of, or failure to comply with or
failure to enforce at any time, any of the provisions of this Agreement shall be
binding on such Party only if evidenced in writing and signed by each of the
parties hereto and shall not be construed as or constitute a continuing waiver
of such provision, or a waiver of any other breach of, or failure to comply
with, any other provision of this Agreement, nor shall it in any way affect the
validity of this Agreement or any part hereof or the right of any Party
thereafter to enforce each and every provision of this Agreement pursuant to the
terms hereof.
10.2 Notices. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be duly given if
delivered, or if sent by prepaid registered mail or if transmitted by facsimile
to a Party at its address set forth below:
If to the Purchaser, to:
Address: 0000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000, XXX
Facsimile: x0-000-000-0000
Attention: Xx. Xxxxx Xxxxxxxx
If to IS, to:
Address: 0000, Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000, XXX
Facsimile: __________
Attention: Xxxxx Xxxxx
If to LH, to:
Address: 0000, X. Xxxxx Xxxxxx Xxxx
#0, Xxxxxxxxxx, XX 00000, XXX
Facsimile: + 0-000-000 8430
Attention: Xxxx Xxxxx
If to the Company, to:
Address: 93/A, 0/xx/ X Xxxxx,
0/xx/ Xxxxx, Xxxxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 000 000,
Xxxxxxxxx, Xxxxx
Facsimile: + 00-00-000 7594
Attention: Company Secretary
or to such other address as the Party to whom such notice is to be given shall
have last notified the Party giving the notice in the manner provided in this
Section 10.2. Any notice delivered to the Party to whom it is addressed in the
manner provided in this Section 10.2 shall be deemed to have been given and
received on the day it is so delivered at such address, provided that if such
day is not a business day, then the notice shall be deemed to have been given
and received on the next business day, then the notice shall be deemed to have
been given and received on the next business day. Any notice sent by prepaid
registered mail shall be deemed to have been given and received on the fifth
business day following the date of its mailing. Any notice transmitted by
facsimile shall be deemed given and received upon receipt of a confirmed answer
back following transmission.
10.3 Dispute Resolution. Any dispute or difference or claim arising out
of or in connection with this Agreement including the construction, validity,
performance or breach thereof (a "Dispute"), which the parties cannot settle by
mutual discussions shall be referred to final and binding arbitration before a
panel of three arbitrators pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. Arbitration shall take place in Allegheny
County, Pennsylvania. At the request of any party, the arbitrators, attorneys,
parties to the arbitration, witnesses, experts, court reporters, and other
persons present at the arbitration shall agree in writing to maintain the strict
confidentiality of the arbitrations proceedings and awards. The award of the
arbitrators shall be enforceable under any applicable Law. The arbitrators may
award damages and/or injunctive relief, but in no event
shall the arbitrators have the authority to award punitive or exemplary damages.
Nothwithstanding the above, a party may apply to a court of competent
jurisdiction for relief in the form of a temporary restraining order or
preliminary injunction pending final determination of a claim through
arbitration in accordance with this paragraph. If proper notice has been given,
the arbitrators will have full power to proceed to take evidence or to perform
any other acts necessary to arbitrate the matter in the absence of any party who
fails to appear.
10.4 Severability. Each Article, Section, paragraph and clause of this
Agreement constitutes a separate and distinct undertaking, covenant and/or
provision. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under Law. In the event
that any provision of this Agreement shall be finally determined to be unlawful,
such provision shall be deemed severed from this Agreement, but every other
provision of this Agreement shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted by
mutual consultation and agreement of the parties hereto a provision of similar
import reflecting the original intent of the parties to the extent permissible
under Law.
10.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Pennsylvania, without giving effect to
the principles of conflicts of laws thereof.
10.6 Assignment. No party hereto shall assign this Agreement or any
rights and/or obligations hereunder to any Person, provided, however, that the
Purchaser may assign this Agreement or any rights and/or obligations under this
Agreement to any Affiliate of the Purchaser.
10.7 Expenses. Each party hereto will bear the legal, accounting and
other expenses incurred by such party in connection with the negotiation,
preparation and execution of the Transaction Documents, and the transactions
contemplated hereby and thereby.
10.8 Entire Agreement. This Agreement, together with its Exhibit and
Schedules and the other Transaction Documents constitutes the entire agreement
reached between the parties to this Agreement with respect to the transactions
contemplated by this Agreement and may not be amended or modified except
pursuant to Section 10.1 of this Agreement. Any and all previous agreements and
understandings between the parties regarding the subject matter of this
Agreement, whether written or oral, are superseded, cancelled and terminated by
this Agreement.
10.9 Benefit of Agreement. Nothing herein expressed or implied is
intended, nor shall it be construed, to confer upon or give to any Person who is
not a party to this Agreement any right, remedy or claim under or by reason of
this Agreement or any part hereof.
10.10 Counterparts. This Agreement may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first hereinabove written.
XXXXX XXXXX
____________________
XXXX XXXXX
____________________
QUINTANT SERVICES LIMITED
By: ____________________
Name: ______________
Title: _____________
iGATE CORPORATION
By: ____________________
Name: ______________
Title: _____________
