EXHIBIT 1.1
WNS (HOLDINGS) LIMITED
10,428,708 ORDINARY SHARES, PAR VALUE 10 JERSEY ▇▇▇▇▇ PER SHARE
IN THE FORM OF AMERICAN DEPOSITARY SHARES
UNDERWRITING AGREEMENT
[ ], 2006
[ ], 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Ladies and Gentlemen:
WNS (Holdings) Limited, a company incorporated in Jersey, Channel Islands
(the "COMPANY"), proposes to issue and sell to the several Underwriters named
in Schedule II hereto (the "UNDERWRITERS"), and certain shareholders of the
Company named in Schedule I hereto severally propose to sell to the several
Underwriters, an aggregate of 10,428,708 American Depositary Shares of the
Company (the "FIRM ADSs") representing 10,428,708 ordinary shares, par value 10
Jersey ▇▇▇▇▇ per share, of the Company, of which 4,473,684 American Depositary
Shares are to be issued and sold by the Company and 5,955,024 American
Depositary Shares are to be sold by the shareholders of the Company proposing
to sell Firm ADSs.
Certain shareholders of the Company named in Schedule I hereto (together
with the shareholders proposing to sell Firm ADSs, the "SELLING SHAREHOLDERS")
also propose to sell to the several Underwriters not more than an additional
1,561,000 American Depositary Shares of the Company (the "ADDITIONAL ADSs") if
and to the extent that you, as managers of the offering (the "MANAGERS"), shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such American Depositary Shares granted to the Underwriters in Section
2 hereof. Each Seller (as defined below) proposes to sell the amount of Firm
ADSs or Additional ADSs set forth opposite such Seller's name in Schedule I
hereto. The Firm ADSs and the Additional ADSs are hereinafter collectively
referred to as the "ADSs," and the ordinary shares represented by the ADSs are
herein referred to as the "SHARES." The ordinary shares, par value 10 Jersey
▇▇▇▇▇ per share, of the Company to be in issue after giving effect to the sales
contemplated hereby are
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hereinafter referred to as the "ORDINARY SHARES." The Company and the
Selling Shareholders are hereinafter sometimes collectively referred to as the
"SELLERS."
The Shares will be delivered in the form of American Depositary Shares. The
American Depositary Shares are to be issued pursuant to a Deposit Agreement
dated as of July 18, 2006 (the "DEPOSIT AGREEMENT") among the Company,
Deutsche Bank Trust Company Americas, as Depositary (the "DEPOSITARY"), and the
holders and beneficial owners of the ADSs evidenced by the American Depositary
Receipts (the "ADRs") issued thereunder by the Depositary. Each American
Depositary Share will initially represent the right to receive one Share
deposited pursuant to the Deposit Agreement.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. A registration statement relating to the American Depositary Shares
representing Ordinary Shares, including the Shares, has been filed with the
Commission. The registration statement relating to the Shares as amended at the
time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is
hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the
form first used to confirm sales of ADSs (or in the form first made available to
the Underwriters by the Company to meet requests of purchasers pursuant to Rule
173 under the Securities Act) is hereinafter referred to as the "PROSPECTUS."
The registration statement relating to the American Depositary Shares, as
amended at the time it becomes effective, is hereinafter referred to as the "ADR
REGISTRATION STATEMENT." If the Company has filed an abbreviated registration
statement to register additional Ordinary Shares pursuant to Rule 462(b) under
the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule
462 Registration Statement.
For purposes of this Agreement, "FREE WRITING PROSPECTUS" has the meaning
set forth in Rule 405 under the Securities Act, and "TIME OF SALE PROSPECTUS"
means the preliminary prospectus together with the free writing prospectuses, if
any, each identified in Schedule III hereto. As used herein, the terms
"REGISTRATION STATEMENT," "ADR REGISTRATION STATEMENT," "PRELIMINARY
PROSPECTUS," "TIME OF SALE PROSPECTUS" and "PROSPECTUS" shall include the
documents, if any, incorporated by reference therein. The terms "SUPPLEMENT,"
"AMENDMENT," and "AMEND" as used herein with respect to the Time of Sale
Prospectus or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), that are incorporated by
reference therein.
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1. Representations and Warranties. (a) The Company represents and warrants to
and agrees with each of the Underwriters that:
(i) The Registration Statement and the ADR Registration
Statement have each become effective; no stop order
suspending the effectiveness of the Registration Statement
or the ADR Registration Statement is in effect, and no
proceedings for such purpose are pending before or
threatened by the Commission.
(ii) (A) Each of the Registration Statement and the ADR
Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (B)
the Registration Statement, the ADR Registration Statement
and the Prospectus comply and, as amended or supplemented,
if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of
the Commission thereunder, (C) the Time of Sale Prospectus
does not, and at the time of each sale of the ADSs in
connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as
then amended or supplemented by the Company, if applicable,
will not, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, and (D) the Prospectus
does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in
the Registration Statement, the Time of Sale Prospectus or
the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Managers expressly for use therein.
(iii) The Company is not an "ineligible issuer" in connection with
the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company
is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the
Commission in
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accordance with the requirements of the Securities Act and
the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on
behalf of or used or referred to by the Company complies or
will comply in all material respects with the requirements
of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Schedule
III hereto, the Company has not prepared, used or referred
to, and will not, without the prior consent of the Managers,
prepare, use or refer to, any free writing prospectus.
(iv) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as
a whole.
(v) Each subsidiary of the Company, excluding Town & Country
Assistance Ltd. (each, a "SUBSIDIARY"), has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or
leasing of property requires such qualification, except to
the extent the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each Subsidiary of the
Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or
indirectly through one or more subsidiaries by the Company,
free and clear of all liens, encumbrances, equities or
claims.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
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(vii) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description
thereof contained in each of the Time of Sale Prospectus and
the Prospectus.
(viii) The Ordinary Shares (including the Shares to be sold by the
Selling Shareholders) in issue prior to the issuance of the
Shares to be sold by the Company have been duly authorized
and are validly issued, fully paid and non-assessable.
(ix) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with
the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights,
except for pre-emptive rights and rights of first refusal of
shareholders of the Company as of the date hereof, all of
which have been effectively waived.
(x) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization,
execution and delivery thereof by the Depositary, is a valid
and legally binding agreement of the Company, enforceable in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(xi) ADRs, when issued by the Depositary against the deposit of
Shares in respect thereof in accordance with the provisions
of the Deposit Agreement, will be duly authorized and
validly issued and the persons in whose names such ADRs are
registered will be entitled to the rights of registered
holders of ADRs specified therein and in the Deposit
Agreement.
(xii) The Deposit Agreement, the American Depositary Shares and
the ADRs conform in all material respects as to legal
matters to the description thereof contained in each of the
Time of Sale Prospectus and the Prospectus.
(xiii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement and the Deposit Agreement, will not contravene any
provision of applicable law, the certificate of
incorporation or memorandum and articles of association of
the Company, any
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agreement or other instrument binding upon the Company or
any of its subsidiaries (except for such contravention of an
agreement or other instrument that would not result in a
material adverse effect on (A) the performance by the
Company of its obligations under, or the consummation of any
of the transactions contemplated in, this Agreement or the
Deposit Agreement or (B) the Company and its subsidiaries,
taken as a whole), or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by the Company of its obligations under this Agreement or
the Deposit Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the ADSs.
(xiv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Time of Sale Prospectus.
(xv) There are no legal, governmental or arbitral proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject (A) other
than proceedings accurately described in all material
respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or (B) that are required
to be described in the Registration Statement or the
Prospectus and are not so described; and there are no
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required.
(xvi) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
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(xvii) The Company is not, and after giving effect to the offering
and sale of the ADSs and the application of the proceeds
thereof as described in the Prospectus will not be, required
to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended
(the "1940 ACT").
(xviii) The Company and its subsidiaries (A) are in compliance with
any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (B) have received all permits,
licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or
failure to comply with the terms or conditions of such
permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(xix) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have
a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xx) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to file a registration statement under
the Securities Act with respect to any securities of the
Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration
Statement, except for (1) the investment agreement, dated
March 8, 2002, among Warburg Pincus Private Equity VIII,
L.P., Warburg Pincus International Partners, L.P. and
Warburg, ▇▇▇▇▇▇ Netherlands International Partners I, CV.
(together, the "WARBURG ENTITIES"), British Airways plc
("BRITISH AIRWAYS"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Company and
WNS (Mauritius) Limited, as
7
amended (the "INVESTMENT AGREEMENT"), and (2) the
registration rights agreement, dated May 20, 2002, among the
Warburg Entities, British Airways and the Company (the
"REGISTRATION RIGHTS AGREEMENT"). The Investment Agreement
will terminate upon the completion of this offering.
(xxi) Subsequent to the respective dates as of which information
is given in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus, (A) the Company and its
subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any
material transaction; (B) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on
its capital stock other than ordinary and customary
dividends; and (C) there has not been any material change in
the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries, except in each case as
described in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus, respectively.
(xxii) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters to Jersey or any
political subdivision or taxing authority thereof in
connection with (1) the issuance of the Shares to be sold by
the Company, (2) the deposit with the Depositary of any
Shares against the issuance of the corresponding American
Depositary Shares and related ADRs or (3) the issuance, sale
or delivery of the American Depositary Shares to the
Underwriters.
(xxiii) The Company does not expect to be a Passive Foreign
Investment Company ("PFIC") within the meaning of Section
1297 of the United States Internal Revenue Code of 1986, as
amended, for its taxable year ended March 31, 2006, and does
not expect to be a PFIC for its future taxable years
beginning after the Company's current taxable year ending
March 31, 2007.
(xxiv) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and
marketable title to all personal property owned by them
which is material to the business of the Company and its
subsidiaries, taken as a whole, in each case free and clear
of all liens, encumbrances and defects except such as are
described in the Time of Sale Prospectus or such as do not
materially affect the value of such
8
property and do not materially interfere with the use made
and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries,
in each case except as described in the Time of Sale
Prospectus.
(xxv) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade
names (the "INTELLECTUAL PROPERTY") currently employed by
them in connection with the business now operated by them,
and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with
asserted rights of others with respect to any of the
Intellectual Property which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xxvi) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent; and the Company is not aware of
any existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers,
manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as
a whole.
(xxvii) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged;
neither the Company nor any of its Subsidiaries has been
refused any insurance coverage sought or applied for; and
neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
9
(xxviii) Each of the Company and its subsidiaries (A) possesses all
certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct its business (the "REGULATORY PERMITS")
and (B) has not received any notice of proceedings relating
to the revocation or modification of any Regulatory Permits,
except where the failure to possess such Regulatory Permits,
or an unfavorable decision, ruling or finding in any
proceedings with respect to such Regulatory Permits, would
not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(xxix) The Company and each of its Subsidiaries maintain a system
of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in
accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity
with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is
permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with
respect to any differences. Since the end of the Company's
most recent audited fiscal year, there has been (i) no
material weakness in the Company's internal control over
financial reporting (whether or not remediated) and (ii) no
change in the Company's internal control over financial
reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control
over financial reporting.
(xxx) The consolidated financial statements of the Company and its
subsidiaries, together with related notes as set forth in
the Registration Statement, the Time of Sale Prospectus and
the Prospectus, present fairly in all material respects the
financial position and the results of operations and cash
flows of the Company and the consolidated subsidiaries, at
the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with
United States generally accepted principles of accounting
("GAAP"), consistently applied throughout the periods
involved, except as disclosed therein, and all adjustments
necessary for a fair presentation of results for such
periods have been made. The summary and selected
consolidated financial and statistical data included in the
Registration Statement, the Time of Sale Prospectus and the
10
Prospectus presents fairly in all material respects the
information shown therein and such summary and selected
consolidated financial data has been compiled on a basis
consistent with the financial statements presented therein
and the books and records of the Company. The pro forma
financial statements and other pro forma financial
information included in the Registration Statement, the Time
of Sale Prospectus and the Prospectus present fairly in all
material respects the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements,
have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein. All
disclosures contained in the Registration Statement, the
Time of Sale Prospectus and the Prospectus regarding
"non-GAAP financial measures" (as such term is defined by
the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation
S-K under the Securities Act, to the extent applicable.
There are no financial statements (historical or pro forma)
that are required to be included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus
that are not included as required.
(xxxi) Ernst & Young, which has certified the financial statements
filed with the Commission as part of the Registration
Statement is an independent registered public accounting
firm with respect to the Company and its subsidiaries within
the meaning of the Securities Act and the applicable rules
and regulations and the Public Company Accounting Oversight
Board (United States).
(xxxii) Except as described in the Registration Statement, the
Company has not sold, issued or distributed any Ordinary
Shares during the six-month period preceding the date
hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act, other than shares
issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(xxxiii) Neither the Company, nor to the Company's knowledge, any of
its affiliates, has taken or may take, directly or
indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected
to constitute, the
11
stabilization or manipulation of the price of the Ordinary
Shares to facilitate the sale or resale of the Shares or the
ADSs.
(xxxiv) None of the subsidiaries of the Company is currently
prohibited, directly or indirectly, from making any
payments, dividends or other distributions to the Company,
WNS (Mauritius) Ltd. or WNS North America Inc., as
applicable, such payments, dividends and other distributions
being freely convertible into other currencies, or from
making any other distribution on such subsidiaries' equity
interest or from transferring any of such subsidiaries'
property or assets to the Company, WNS (Mauritius) Ltd. or
WNS North America Inc., as applicable, in each case without
there being required any consent, approval, authorization or
order of, or qualification with, any court or governmental
agency or body; provided, however, that any such payments,
dividends, distributions or transfer of property or assets
by WNS Global Services (Pvt.) Ltd or WNS Customer Solutions
(Pvt.) Ltd (the "Sri Lankan Subsidiaries") to WNS Global
Services (UK) Ltd and WNS (Mauritius) Ltd. must be made
through a "Shares Investment Exchange Rupee Account" or
pursuant to an approval from the Central Bank of Sri
Lanka, Exchange Control division, and any distribution from
WNS (Mauritius) Ltd is subject to the solvency test in
Mauritius, and the dividends must be paid out of retained
earnings. Under the current laws and regulations of Jersey,
all dividends and other distributions declared and payable
on Ordinary Shares in cash may be freely transferred out of
Jersey and may be freely converted into United States
dollars, in each case without there being required any
consent, approval, authorization or order of, or
qualification with, any court or governmental agency or body
in Jersey; and except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus,
all such dividends and other distributions will not be
subject to withholding, value added or other taxes under the
laws and regulations of Jersey.
(xxxv) The Company and its subsidiaries have paid all material
Mauritius, India, Sri Lanka and all other material foreign,
federal, state and local taxes and filed all material tax
returns required to be paid or filed through the date
hereof, except to the extent that (i) the Company has
requested and been granted an extension for the payment of
any such tax, each of which extension remains in effect as
of the date hereof and shall not have expired as of the
Closing Date, and (ii) any such tax need not be paid if and
while it is being contested in good faith by appropriate
proceedings promptly instituted and diligently
12
conducted and the Company is so contesting such tax as of
the date hereof; and except as otherwise disclosed in the
Time of Sale Prospectus and the Prospectus, there is no
material tax deficiency that has been, or could reasonably
be expected to be, asserted against the Company or any of
its subsidiaries or any of their respective properties or
assets.
(xxxvi) Neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any director, officer, agent,
employee or other person associated with or acting on behalf
of the Company or any of its subsidiaries has (A) used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to
political activity; (B) made any direct or indirect unlawful
payment to any foreign or domestic government official or
employee from corporate funds; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (D) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(xxxvii) The Company is a "foreign private issuer" within the meaning
of Rule 405 under the Securities Act.
(xxxviii) Neither the Company nor, to the Company's knowledge, any
director, officer, agent, employee or affiliate of the
Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the
U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered
by OFAC.
(xxxix) The ADSs have been approved for listing subject to notice of
issuance on the New York Stock Exchange (the "NYSE").
(xl) Schedule IV hereto contains, under the heading "Employee
Shareholders," a full and complete list of the persons who
are employees of the Company who currently own stock in the
Company, other than (i) any directors who are also employees
of the Company and executive officers and (ii) any Selling
Shareholders who are also employees of the Company.
13
(b) Each Selling Shareholder (other than the "TRUST," which means ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in their capacity as the trustees of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Personal Settlement), severally and not jointly, represents and warrants to and
agrees with each of the Underwriters that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(ii) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its
obligations under, this Agreement and, as applicable, the
Custody Agreement signed by such Selling Shareholder and the
Company, as Custodian, relating to the deposit of the Shares
to be sold by such Selling Shareholder (the "CUSTODY
AGREEMENT"), the Power of Attorney appointing certain
individuals as such Selling Shareholder's attorneys-in-fact
to the extent set forth therein, relating to the
transactions contemplated hereby and by the Registration
Statement (the "POWER OF ATTORNEY"), the statement of
election and questionnaire relating to the number of shares
such selling shareholder wishes to sell in the offering (the
"STATEMENT OF ELECTION AND QUESTIONNAIRE") and the stock
transfer form relating to the transfer of such selling
shareholder's shares (the "STOCK TRANSFER FORM") will not
contravene any provision of applicable law, or the
certificate of incorporation or by-laws of such Selling
Shareholder (if such Selling Shareholder is a corporation),
or any agreement or other instrument binding upon such
Selling Shareholder (except for such contravention of an
agreement or other instrument that would not result in a
material adverse effect on (A) the performance by such
Selling Shareholder of its obligations under, or the
consummation of any of the transactions contemplated in,
this Agreement or the Deposit Agreement or (B) such Selling
Shareholder) or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
such Selling Shareholder, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by such Selling Shareholder of its obligations under this
Agreement or the Custody Agreement, Power of Attorney,
Statement of Election and Questionnaire or Stock Transfer
Form of such Selling Shareholder, except such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the ADSs.
(iii) Such Selling Shareholder has, and on the Closing Date will
have, valid title to, or a valid "security entitlement"
within the
14
meaning of Section 8-501 of the New York Uniform Commercial
Code in respect of, the Shares underlying the ADSs to be
sold by such Selling Shareholder free and clear of all
security interests, claims, liens, equities or other
encumbrances, except for pre-emptive rights, rights of first
refusal and tag-along rights of other shareholders of the
Company as of the date hereof, all of which have been
effectively waived or are being satisfied by the terms of
this offering, and the legal right and power, and all
authorization and approval required by law, to enter into
this Agreement and, if applicable, the Custody Agreement and
the Power of Attorney and to sell, transfer and deliver the
Shares and the ADSs to be sold by such Selling Shareholder
and to deposit with the Depositary the Shares to be sold by
such Selling Shareholder.
(iv) Upon deposit of the Shares to be sold by such Selling
Shareholder and payment therefor pursuant to this Agreement,
valid title to such Shares will be passed in accordance with
the Deposit Agreement to the Depositary who has received
deposit of such Shares without notice of an adverse claim,
free and clear of any adverse claim within the meaning of
Section 8-102 of the New York Uniform Commercial Code.
(v) ADRs representing Shares to be sold by such Selling
Shareholder, when issued by the Depositary against the
deposit of Shares in respect thereof in accordance with the
provisions of the Deposit Agreement, will be duly authorized
and validly issued and the persons in whose names such ADRs
are registered will be entitled to the rights of registered
holders of ADRs specified therein and in the Deposit
Agreement.
(vi) The Custody Agreement and the Power of Attorney, if
applicable, have been duly authorized, executed and
delivered by such Selling Shareholder and are valid and
legally binding agreements of such Selling Shareholder,
enforceable in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(vii) Such Selling Shareholder is not prompted by any information
concerning the Company or its subsidiaries which is not set
15
forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus to sell its ADSs pursuant to
this Agreement.
(viii) (A) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (B) the Time of Sale Prospectus does
not, and at the time of each sale of the ADSs in connection
with the offering when the Prospectus is not yet available
to prospective purchasers and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and (C) the Prospectus does not
contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided that the representations
and warranties set forth in this paragraph 2(b)(viii) are
limited to statements or omissions in the Registration
Statement, the Time of Sale Prospectus, the Prospectus or
any amendments or supplements thereto, made in reliance upon
information relating to such Selling Shareholder furnished
to the Company in writing by such Selling Shareholder
expressly for use therein; it being understood and agreed
that the only written information furnished to the Company
by each Selling Shareholder expressly for use in the
Registration Statement, the Time of Sale Prospectus, the
Prospectus, or any amendments or supplements thereto is the
information relating to such Selling Shareholder set forth
in the section "Principal and Selling Shareholders" (except
for the percentages set forth therein).
(ix) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause
or result in the stabilization or manipulation of the price
of the Ordinary Shares of the Company and, other than as
permitted by the Securities Act, such Selling Shareholder
will not distribute any prospectus or other offering
material in connection with the offering of the ADSs.
16
(x) There are no contracts, agreements or understandings between
such Selling Shareholder and any person that would give rise
to a valid claim against such Selling Shareholder or any
Underwriter for a brokerage commission, finder's fee or
other like payment.
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Trust jointly and severally represent and
warrant to and agree with each of the Underwriters that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Trust.
(ii) The execution and delivery by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Trust of, and the performance by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and the Trust of his or its respective obligations under,
this Agreement and, as applicable, the Custody Agreement,
the Power of Attorney, the Statement of Election and
Questionnaire and the Stock Transfer Form will not
contravene any provision of applicable law, or the trust
deed establishing the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Personal Settlement, or
any agreement or other instrument binding upon either
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust (except for such contravention
of an agreement or other instrument that would not result in
a material adverse effect on (A) the performance by either
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust of his or its respective
obligations under, or the consummation of any of the
transactions contemplated in, this Agreement or the Deposit
Agreement or (B) either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust) or any
judgment, order or decree of any governmental body, agency
or court having jurisdiction over either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
the Trust, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency
is required for the performance by either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
the Trust of his or its respective obligations under this
Agreement or the Custody Agreement, Power of Attorney,
Statement of Election and Questionnaire or Stock Transfer
Form of the Trust, as applicable, except such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the ADSs.
17
(iii) The Trust has, and on the Closing Date will have, valid
title to, or a valid "security entitlement" within the
meaning of Section 8-501 of the New York Uniform Commercial
Code in respect of, the Shares underlying the ADSs to be
sold by the Trust free and clear of all security interests,
claims, liens, equities or other encumbrances, except for
pre-emptive rights, rights of first refusal and tag-along
rights of other shareholders of the Company as of the date
hereof, all of which have been effectively waived or are
being satisfied by the terms of this offering, and the legal
right and power, and all authorization and approval required
by law, to enter into this Agreement and the Custody
Agreement and the Power of Attorney and to sell, transfer
and deliver the Shares and the ADSs to be sold by the Trust
and to deposit with the Depositary the Shares to be sold by
the Trust.
(iv) Upon deposit of the Shares to be sold by the Trust and
payment therefor pursuant to this Agreement, valid title to
such Shares will be passed in accordance with the Deposit
Agreement to the Depositary who has received deposit of such
Shares without notice of an adverse claim, free and clear of
any adverse claim within the meaning of Section 8-102 of the
New York Uniform Commercial Code.
(v) ADRs representing Shares to be sold by the Trust, when
issued by the Depositary against the deposit of Shares in
respect thereof in accordance with the provisions of the
Deposit Agreement, will be duly authorized and validly
issued and the persons in whose names such ADRs are
registered will be entitled to the rights of registered
holders of ADRs specified therein and in the Deposit
Agreement.
(vi) The Custody Agreement and the Power of Attorney, as
applicable, have been duly authorized, executed and
delivered by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Trust and are
valid and legally binding agreements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
the Trust, as the case may be, enforceable in accordance
with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
18
(vii) Neither ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ nor the Trust is prompted by any
information concerning the Company or its subsidiaries which
is not set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus to sell his or its ADSs
pursuant to this Agreement.
(viii) (A) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (B) the Time of Sale Prospectus does
not, and at the time of each sale of the ADSs in connection
with the offering when the Prospectus is not yet available
to prospective purchasers and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading and (C) the Prospectus does not
contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided that the representations
and warranties set forth in this paragraph 2(b)(viii) are
limited to statements or omissions in the Registration
Statement, the Time of Sale Prospectus, the Prospectus or
any amendments or supplements thereto, made in reliance upon
information relating to either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust
furnished to the Company in writing by either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or the Trust expressly for use therein; it being understood
and agreed that the only written information furnished to
the Company by either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust expressly
for use in the Registration Statement, the Time of Sale
Prospectus, the Prospectus, or any amendments or supplements
thereto is the information relating to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Trust set forth in the section "Principal and Selling
Shareholders" (except for the percentages set forth
therein).
(ix) Neither ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ nor the Trust has taken or will take,
directly or indirectly, any action designed to, or which has
constituted, or which might
19
reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Ordinary
Shares of the Company and, other than as permitted by the
Securities Act, neither ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ nor the Trust will
distribute any prospectus or other offering material in
connection with the offering of the ADSs.
(x) There are no contracts, agreements or understandings between
either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust, and any person that
would give rise to a valid claim against ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the
Trust or any Underwriter for a brokerage commission,
finder's fee or other like payment.
2. Agreements to Sell and Purchase. Each Seller, severally and not jointly,
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from such Seller at $______ per ADS (the "PURCHASE PRICE") the number
of Firm ADSs (subject to such adjustments to eliminate fractional shares as the
Managers may determine) that bears the same proportion to the number of Firm
ADSs to be sold by such Seller as the number of Firm ADSs set forth in Schedule
II hereto opposite the name of such Underwriter bears to the total number of
Firm ADSs.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each Seller, severally and
not jointly, agrees to sell to each Underwriter at the Purchase Price the number
of Additional ADSs (subject to such adjustments to eliminate fractional shares
as the Managers may determine) that bears the same proportion to the number of
Additional ADSs to be sold by such Seller as the number of Firm ADSs set forth
in Schedule II hereto opposite the name of such Underwriter bears to the total
number of Firm ADSs, and the Underwriters shall have the right to purchase,
severally and not jointly, up to 1,561,000 Additional ADSs at the Purchase
Price. The Managers may exercise this right on behalf of the Underwriters in
whole or in part but not more than once by giving written notice not later than
30 days after the date of this Agreement. Any exercise notice shall specify the
number of Additional ADSs to be purchased by the Underwriters and the date on
which such Additional ADSs are to be purchased. Each purchase date must be at
least one business day after the written notice is given and may not be earlier
than the closing date for the Firm ADSs nor later than ten business days after
the date of such notice. Additional ADSs may be purchased as provided in Section
4 hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm ADSs. On each day, if any, that Additional ADSs
are to be purchased (an "OPTION CLOSING DATE"), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional ADSs (subject to
such
20
adjustments to eliminate fractional shares as the Managers may determine) that
bears the same proportion to the total number of Additional ADSs to be purchased
on such Option Closing Date as the number of Firm ADSs set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm
ADSs.
3. Terms of Public Offering. The Sellers are advised by the Managers that the
Underwriters propose to make a public offering in the United States of their
respective portions of the ADSs as soon after the Registration Statement and
this Agreement have become effective as in the judgment of the Managers is
advisable. The Sellers are further advised by the Managers that the ADSs are to
be offered to the public initially at $______ per ADS (the "PUBLIC OFFERING
PRICE") and to certain dealers selected by the Managers at a price that
represents a concession not in excess of $______ per ADS under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $______ per ADS, to any Underwriter or
to certain other dealers.
4. Payment and Delivery. Payment for the Firm ADSs to be sold by the Company and
the Selling Shareholders (other than British Airways) shall be made to the
Company and to the Custodian, on behalf of such Selling Shareholders, and
payment for the Firm ADSs to be sold by British Airways shall be made to British
Airways, each in federal or other funds immediately available in New York City
against delivery of such Firm ADSs for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [ ], 2006, or at such
other time on the same or such other date, not later than [insert date that is
five business days after date in previous line], 2006, as shall be designated in
writing by the Managers. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional ADSs to be sold by the Company and the Selling
Shareholders (other than the Warburg Entities) shall be made to the Company and
to the Custodian, on behalf of such Selling Shareholders, and payment for the
Additional ADSs to be sold by the Warburg Entities shall be made to a designee
of the Warburg Entities, each in federal or other funds immediately available in
New York City against delivery of such Additional ADSs for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on the
date specified in the corresponding notice described in Section 2 or at such
other time on the same or on such other date, in any event not later than
[insert date ten business days after the expiration of the green shoe option],
2006, as shall be designated in writing by the Managers.
The Firm ADSs and Additional ADSs shall be registered in such names and in
such denominations as the Managers shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The ADRs corresponding to the Firm ADSs and
21
Additional ADSs shall be delivered to the Managers on the Closing Date or an
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the ADSs to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the Sellers
to sell the ADSs to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the ADSs on the Closing Date are subject to
the condition that the Registration Statement and the ADR Registration Statement
each shall have become effective not later than [ ] (New York City time) on
the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any of the securities of the Company or any
of its subsidiaries by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from
that set forth in the Time of Sale Prospectus that, in the
judgment of the Managers, is material and adverse and that
makes it, in the judgment of the Managers, impracticable to
market the ADSs on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct in all material respects as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date.
22
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date opinions and a
letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated the Closing
Date, substantially in the forms of Exhibits C-1, C-2 and C-3.
(d) The Underwriters shall have received on the Closing Date an opinion of
Mourant du Feu & Jeune, Jersey counsel for the Company, dated the Closing Date,
substantially in the form of Exhibit D.
(e) The Underwriters shall have received on the Closing Date an opinion of
Amarchand & Mangaldas & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., Indian counsel for the Company,
dated the Closing Date, substantially in the form of Exhibit E.
(f) The Underwriters shall have received on the Closing Date an opinion of
Etude ▇▇▇▇▇▇▇ ▇▇▇▇, Mauritian counsel for the Company, dated the Closing Date,
substantially in the form of Exhibit F.
(g) The Underwriters shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇ and May, English counsel to British Airways, dated the Closing Date,
substantially in the form of Exhibit G.
(h) The Underwriters shall have received on the Closing Date an opinion of
Simcocks, Isle of Man counsel to the Trust, dated the Closing Date,
substantially in the form of Exhibit H.
(i) The Underwriters shall have received on the Closing Date an opinion and
a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the
Underwriters, dated the Closing Date, in form and substance satisfactory to the
Managers.
(j) The Underwriters shall have received on the Closing Date an opinion of
AZB & Partners, Indian counsel for the Underwriters, dated the Closing Date, in
form and substance satisfactory to the Managers.
(k) The Underwriters shall have received on the Closing Date an opinion of
White & Case LLP, counsel for the Depositary, dated the Closing Date,
substantially in the form of Exhibit I.
The opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (on behalf of the Company), Mourant du
Feu & Jeune (on behalf of the Company and the Selling Shareholders), Amarchand &
Mangaldas & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co. (on behalf of the Company), Etude ▇▇▇▇▇▇▇
▇▇▇▇ (on behalf of the Company), ▇▇▇▇▇▇▇▇▇ and May (on behalf of British
Airways), Simcocks (on behalf of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇) and White & Case LLP (on behalf
of the Depositary) described in Section 5(c),
23
5(d), 5(e), 5(f), 5(g), 5(h) and 5(k) above shall be rendered to the
Underwriters at the request of the Company, the Selling Shareholders, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ or the Depositary, as applicable, and shall so state therein.
(l) The Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to the Underwriters, from Ernst
& Young, independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale Prospectus
and the Prospectus; provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(m) The "lock-up" agreements, each substantially in the form of Exhibit A
hereto, between the Managers and our directors, our executive officers, our
employee shareholders and certain of the other shareholders of the Company, each
as listed in Schedule IV hereto, relating to sales and certain other
dispositions of Ordinary Shares or certain other securities, delivered to the
Managers on or before the date hereof, shall be in full force and effect on the
Closing Date.
(n) The Underwriters shall have received on the Closing Date from each
Selling Shareholder and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ a certificate, dated the Closing Date and
signed by an executive officer of such Selling Shareholder (if such Selling
Shareholder is not an individual), to the effect that the representations and
warranties of such Selling Shareholder or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be,
contained in this Agreement are true and correct as of the Closing Date and that
such Selling Shareholder or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be, has complied or
will comply with all of the agreements and has satisfied or will satisfy all of
the conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(o) On or prior to the date the date hereof, each of the Selling
Shareholders (other than the Warburg Entities and British Airways) shall have
furnished for review by the Underwriters executed copies of its Power of
Attorney, Custody Agreement and Statement of Election and Questionnaire.
(p) On or prior to the date the date hereof, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
furnished for review by the Underwriters executed copies of his Power of
Attorney.
24
The several obligations of the Underwriters to purchase Additional ADSs
hereunder are subject to the delivery to the Managers on the applicable Option
Closing Date of such documents as the Managers may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional ADSs to be sold on such Option Closing Date and other matters
related to the issuance of such Additional ADSs.
6. Covenants of the Company and the Selling Shareholders. (a) The Company
covenants with each Underwriter as follows:
(i) To furnish to the Managers, without charge, four signed
copies of the Registration Statement and the ADR
Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement and the ADR Registration Statement
(without exhibits thereto) and to furnish to the Managers in
New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section
6(a)(v) or 6(a)(vi) below, as many copies of the Time of
Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as the
Managers may reasonably request.
(ii) Before amending or supplementing the Registration Statement,
the ADR Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to the Managers a copy of each
such proposed amendment or supplement and not to file any
such proposed amendment or supplement to which the Managers
reasonably object, and to file with the Commission within
the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant
to such Rule.
(iii) To furnish to the Managers a copy of each proposed free
writing prospectus to be prepared by or on behalf of, used
by, or referred to by the Company and not to use or refer to
any proposed free writing prospectus to which the Managers
reasonably object.
(iv) Not to take any action that would result in an Underwriter
or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
25
(v) If the Time of Sale Prospectus is being used to solicit
offers to buy the ADSs at a time when the Prospectus is not
yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is
necessary to amend or supplement the Time of Sale Prospectus
to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur
or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the
reasonable opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Time of Sale Prospectus
to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so
that the statements in the Time of Sale Prospectus as so
amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with
applicable law.
(vi) If, during such period after the first date of the public
offering of the ADSs as in the reasonable opinion of counsel
for the Underwriters the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act)
is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to
amend or supplement the Prospectus to make the statements
therein, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) is delivered to a
purchaser, not misleading, or if, in the reasonable opinion
of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Managers will furnish to the
Company) to which ADSs may have been sold by the Managers on
behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus (or in lieu thereof the notice referred
to in Rule
26
173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(vii) To endeavor to qualify the Shares and the corresponding
American Depositary Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the
Managers shall reasonably request; provided, however, that
nothing contained in this Section 6(a)(vii) shall require
the Company to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that
would subject it to service of process in suits or to
subject itself to taxation in any jurisdiction in which it
is otherwise not so subject, other than suits and taxes
arising out of the offering or sale of the ADSs.
(viii) To make generally available to the Company's security
holders and to the Managers as soon as practicable an
earning statement covering a period of at least twelve
months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which
shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the
Commission thereunder.
(ix) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated,
the Company agrees to pay or cause to be paid all expenses
incident to the performance of their obligations under this
Agreement, including: (A) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants
and counsel for the Selling Shareholders in connection with
the registration and delivery of the Shares and the related
ADSs under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the
Registration Statement, the ADR Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any free writing prospectus prepared by or on
behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (B)
all costs and expenses related to the transfer and delivery
of the Shares and the related ADSs to be sold by the Company
and the Selling Shareholders to the Underwriters, including
any transfer or other taxes payable thereon, (C) the
27
cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale
of the Shares or the related ADSs under state securities
laws and all expenses in connection with the qualification
of the Shares and any related ADSs for offer and sale under
state securities laws as provided in Section 6(a)(vii)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (D) all filing fees and the
reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and
qualification of the offering of the Shares and any related
ADSs by the National Association of Securities Dealers,
Inc., (E) all fees and expenses in connection with the
preparation and filing of the registration statement on Form
8-A relating to the Shares and the ADSs and all costs and
expenses incident to listing the ADSs on the NYSE, (F) the
cost of printing certificates representing the Shares or
American Depositary Receipts corresponding to the ADSs, (G)
the costs and charges of any transfer agent, registrar or
depositary, (H) the costs and expenses of the Company
relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering
of the ADSs, including, without limitation, expenses
associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior
approval of the Company and travel and lodging expenses of
the representatives and officers of the Company and any such
consultants, other than the cost of any aircraft chartered
in connection with the road show, which shall be shared
equally between the Company and the Underwriters, (I) the
document production charges and expenses associated with
printing this Agreement and (J) all other costs and expenses
incident to the performance of the obligations of the
Company and the Selling Shareholders hereunder for which
provision is not otherwise made in this Section. It is
understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution" and
the last paragraph of Section 10 below, the Underwriters
will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares or ADSs by them and any
advertising expenses connected with any offers they may
make.
28
(x) The Company, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. International Limited ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") on
behalf of the Underwriters, will not, during the period
ending 180 days after the date of the Prospectus, (1) offer,
pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary
Shares or any securities convertible into or exercisable or
exchangeable for Ordinary Shares, (2) enter into any swap or
other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the
Ordinary Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or
otherwise or (3) file any registration statement with the
Commission relating to the offering of any American
Depositary Shares, Ordinary Shares or any securities
convertible into or exercisable or exchangeable for American
Depositary Shares or Ordinary Shares.
The restrictions contained in the preceding paragraph
shall not apply to (a) the American Depositary Shares to be
sold hereunder (or the Shares represented by them) or (b)
the issuance by the Company of Ordinary Shares upon the
exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which is
disclosed in the Time of Sale Prospectus or which the
Underwriters have been advised in writing, (c) the issuance
by the Company of Ordinary Shares, or options to purchase
Ordinary Shares, pursuant to the Company's 2002 Stock
Incentive Plan, (d) the issuance by the Company of Ordinary
Shares, or options to purchase Ordinary Shares, pursuant to
the Company's 2006 Incentive Award Plan (including the
Addendum to WNS (Holdings) Ltd. 2006 Incentive Award Plan),
(e) the issuance by the Company of any Ordinary Shares in
connection with the acquisition of or merger with or into
any other company (provided that the amount of Ordinary
Shares issued in connection with any such acquisition(s) or
merger(s) does not in the aggregate exceed 10% of the total
shares outstanding of the Company at the time of the
offering) or (f) the filing by the Company of any
registration statement with the Commission on Form S-8
relating to the offering of securities pursuant to the terms
of the 2002 Stock Incentive Plan or the 2006 Incentive Award
Plan (including the Addendum to WNS (Holdings) Ltd. 2006
Incentive Award Plan); provided that each recipient of
Ordinary
29
Shares (including Ordinary Shares issued upon the exercise
of options) pursuant to clauses (b), (c) and (d), during the
restricted period referred to in the immediately preceding
paragraph shall sign and deliver a lock-up letter
substantially in the form of Exhibit B hereto; and provided,
further, that in the case of any issuance pursuant to clause
(e), each recipient of such Ordinary Shares shall agree in
writing, for the benefit of the Underwriters, that such
Ordinary Shares shall remain subject to restrictions
identical to those contained in the immediately preceding
paragraph for the remainder of the period for which the
Company is bound thereunder; and provided, further, that in
the case of any issuance pursuant to clause (b), (c) or (d)
no filing under Section 16(a) of the Exchange Act shall be
required or shall be voluntarily made in connection with any
such issuance.
Notwithstanding the foregoing, if (1) during the last
17 days of the 180-day restricted period the Company issues
an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the
expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this agreement shall
continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the
occurrence of the material news or material event; provided
that in the case of clause (2) above, if no earnings results
are released during the 16-day period, the restricted period
will terminate on the last day of the 16-day period. The
Company shall promptly notify the Managers of any earnings
release, news or event that may give rise to an extension of
the initial 180-day restricted period.
(xi) The Company will use its best efforts to effect and maintain
the listing of the American Depositary Shares on the NYSE.
(xii) The Company will not invest, or otherwise use the proceeds
received by the Company from its sale of the ADSs, in such a
manner as would require the Company to register as an
investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a
registrar for the Ordinary Shares.
30
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any
securities of the Company.
(b) Each Selling Shareholder, in addition to its other agreements and
obligations hereunder, severally and not jointly, covenants with each
Underwriter as follows:
(i) Such Selling Shareholder agrees that (a) it will not
prepare, or have prepared on its behalf, or use or refer to,
any "free writing prospectus" (as defined in Rule 405 under
the Securities Act), and (b) it will not distribute any
written materials in connection with the offer or sale of
the ADSs.
(ii) Not to take any action that would result in an Underwriter
or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(iii) During the period when delivery of a Prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the
Securities Act) is required under the Securities Act, such
Selling Shareholder will advise the Underwriters promptly,
and will confirm such advice in writing to the Underwriters,
of any change in the information relating to such Selling
Shareholder in the Registration Statement, the Time of Sale
Prospectus or the Prospectus.
(iv) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated,
the Selling Shareholders agree to pay or cause to be paid
all expenses incident to the performance of their
obligations under this Agreement, including: (A) the fees,
disbursements and expenses of counsel for the Selling
Shareholders in connection with the registration of the
Shares and the registration and delivery of the ADSs under
the Securities Act, (B) all costs and expenses related to
the transfer and delivery of the ADSs to be sold by the
Selling Shareholders to the Underwriters, including any
transfer or other taxes payable thereon and (C) all other
costs and expenses incident to the performance of the
obligations of the Selling Shareholders hereunder for which
provision is not otherwise made in this Section. It is
understood, however, that
31
except as provided in this Section, Section 8 entitled
"Indemnity and Contribution" and the last paragraph of
Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any
of the ADSs by them and any advertising expenses connected
with any offers they may make.
(v) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price
of any securities of the Company.
(vi) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 and the Interest and
Dividend Tax Compliance Act of 1983 with respect to the
transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to the Managers prior to or
at the Closing Date a properly completed and executed United
States Treasury Department Form W-8 or W-9 (or other
applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(vii) Each Selling Shareholder, without the prior written consent
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, will not,
during the period ending 180 days after the date of the
Prospectus, (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any Ordinary Shares or any
securities convertible into or exercisable or exchangeable
for Ordinary Shares, (2) enter into any swap or other
arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the
Ordinary Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or
otherwise or (3) file any registration statement with the
Commission relating to the offering of any American
Depositary Shares, Ordinary Shares or any securities
convertible into or exercisable or exchangeable for Ordinary
Shares.
The restrictions contained in the preceding paragraph
shall not apply to (a) the American Depositary Shares to be
sold hereunder (or the Shares represented by them), (b)
32
transactions by a Selling Shareholder relating to Ordinary
Shares or other securities acquired in open market
transactions after the completion of the offering of the
ADSs, provided that no filing under Section 16(a) of the
Exchange Act shall be required or shall be voluntarily made
in connection with subsequent sales of Ordinary Shares or
other securities acquired in such open market transactions,
(c) transfers by a Selling Shareholder of Ordinary Shares or
any security convertible into Ordinary Shares as a bona fide
gift and (d) distributions by a Selling Shareholder of
Ordinary Shares or any security convertible into Ordinary
Shares to limited partners or stockholders of the Selling
Shareholder; provided that in the case of any transfer or
distribution pursuant to clause (c) or (d), (i) each donee
or distributee shall enter into a written agreement
accepting the restrictions set forth in the preceding
paragraph and this paragraph as if it were a Selling
Shareholder and (ii) no filing under Section 16(a) of the
Exchange Act, reporting a reduction in beneficial ownership
of Ordinary Shares, shall be required or shall be
voluntarily made in respect of the transfer or distribution
during the 180-day restricted period. Notwithstanding the
foregoing, the Selling Shareholders shall not be prohibited
from entering into a written sales plan designed to comply
with Rule 10b5-1(c) under the Exchange Act, so long as such
plan does not allow for any sales thereunder to be made
until the expiration or termination of the restrictions
contained in this Section 6(b)(vii). In addition, each
Selling Shareholder, agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it
will not, during the period ending 180 days after the date
of the Prospectus, make any demand for, or exercise any
right with respect to, the registration of any American
Depositary Shares or Ordinary Shares or any security
convertible into or exercisable or exchangeable for American
Depositary Shares or Ordinary Shares. Each Selling
Shareholder consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar
against the transfer of any Shares, and with the Depositary
against the transfer of any American Depositary Shares, held
by such Selling Shareholder except in compliance with the
foregoing restrictions.
Notwithstanding the foregoing, if (1) during the last
17 days of the 180-day restricted period the Company issues
an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the
expiration of the 180-day restricted period, the Company
announces that it will
33
release earnings results during the 16-day period beginning
on the last day of the 180-day period, the restrictions
imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of
the earnings release or the occurrence of the material news
or material event; provided that in the case of clause (2)
above, if no earnings results are released during the 16-day
period, the restricted period will terminate on the last day
of the 16-day period. The Company shall promptly notify the
Managers of any earnings release, news or event that may
give rise to an extension of the initial 180-day restricted
period.
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall also be deemed a Selling Shareholder for purposes
of Sections 6(b) (other than Section 6(b)(vi)), 8, 10, 11, 12, 13, 14 and 18.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ covenants with each Underwriter that he shall cause ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Settlement Trust to perform all its obligations under this Agreement.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required
to file with the Commission under Rule 433(d) a free writing prospectus prepared
by or on behalf of such Underwriter that otherwise would not be required to be
filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the ADR Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein.
34
(b) Each Selling Shareholder (other than the Trust), severally and not
jointly, agrees to indemnify and hold harmless each Underwriter, each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Selling Shareholder furnished in
writing by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto; it being understood and
agreed that the only written information furnished to the Company by each
Selling Shareholder expressly for use in the Registration Statement, the Time of
Sale Prospectus, the Prospectus, or any amendments or supplements thereto is the
information relating to such Selling Shareholder set forth in the section
"Principal and Selling Shareholders" (except for the percentages set forth
therein). The liability of each Selling Shareholder under the indemnity
agreement contained in this paragraph shall be several and not joint and shall
be limited to an amount equal to the net proceeds received by such Selling
Shareholder from the sale of ADSs under this Agreement.
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Trust jointly and severally agree to indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act, or the Prospectus or
35
any amendment or supplement thereto, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to information relating to either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Personal
Settlement furnished in writing by or on behalf of either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the
Trust expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as
defined in Rule 433(h) under the Securities Act, any Company information that
the Company has filed, or is required to file, pursuant to Rule 433(d) of the
Securities Act, or the Prospectus or any amendment or supplement thereto; it
being understood and agreed that the only written information furnished to the
Company by either ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Trust for use in the Registration
Statement, the Time of Sale Prospectus, the Prospectus, or any amendments or
supplements thereto is the information relating to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Personal Settlement set forth in the section "Principal and Selling
Shareholders" (except for the percentages set forth therein). The combined
liability of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Trust under the indemnity agreement
contained in this paragraph shall be joint and several and shall be limited to
an amount equal to the net proceeds received by the Trust from the sale of ADSs
under this Agreement.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Shareholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity from the Company to such
Underwriter contained in Section 8(a), but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Managers expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act or
the Prospectus or any amendment or supplement thereto.
(e) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 8(a), 8(b), 8(c) or 8(d), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel,
36
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Selling Shareholders and all
persons, if any, who control any Selling Shareholder within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters,
and such directors, officers and control persons of the Underwriters, such firm
shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Shareholders and such control
persons of any Selling Shareholders, such firm shall be designated in writing by
the persons named as attorneys-in-fact for the Selling Shareholders under the
Powers of Attorney. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless
37
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(f) To the extent the indemnification provided for in Section 8(a), 8(b),
8(c) or 8(d) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the ADSs or
(ii) if the allocation provided by clause 8(f)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(f)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the one hand and the Underwriters
on the other hand in connection with the offering of the ADSs shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
the ADSs (before deducting expenses) received by each Seller (or, in the case of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, received by the Trust) and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate Public Offering Price of
the ADSs. The relative fault of the Sellers or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Sellers, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective number of ADSs they have purchased hereunder, and not joint.
The liability of each Selling Shareholder (other than the Trust) under the
contribution agreement contained in this paragraph shall be limited to an amount
equal to the net proceeds received by such Selling Shareholder from the sale of
ADSs under this Agreement. The combined liability of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Trust under the contribution agreement contained in this paragraph shall be
joint and several and shall be limited to an amount equal to the net proceeds
received by the Trust from the sale of ADSs under this Agreement.
38
(g) The Sellers, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(f) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
(h) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company, the
Selling Shareholders and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter, any
person controlling any Underwriter or any affiliate of any Underwriter, any
Selling Shareholder or any person controlling any Selling Shareholder, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the ADSs.
9. Termination. The Underwriters may terminate this Agreement by notice given by
the Managers to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the NYSE,
the Nasdaq National Market, the National Stock Exchange of India Limited or the
Bombay Stock Exchange (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States, the United Kingdom or Jersey shall have occurred, (iv) any
moratorium on commercial banking activities shall have been declared by federal
or New York State authorities or authorities in India or the United Kingdom or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets, currency exchange rates or controls or any calamity
or crisis that, in the judgment of the Managers, is material and adverse and
which, singly
39
or together with any other event specified in this clause (v), makes it, in the
judgment of the Managers, impracticable or inadvisable to proceed with the
offer, sale or delivery of the ADSs on the terms and in the manner contemplated
in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase ADSs that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of ADSs which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the ADSs to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm ADSs set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm ADSs set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Managers may specify, to purchase the ADSs
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of ADSs
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of ADSs without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm ADSs and the aggregate number of Firm ADSs with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm ADSs to be
purchased on such date, and arrangements satisfactory to the Managers and the
Company for the purchase of such Firm ADSs are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Shareholders. In any
such case either the Managers or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional ADSs and the aggregate number of
Additional ADSs with respect to which such default occurs is more than one-tenth
of the aggregate number of Additional ADSs to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase the Additional ADSs to be sold
on such Option Closing Date or (ii) purchase not less than the number of
Additional ADSs that such non-defaulting Underwriters would have been obligated
to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
40
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of any Seller to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Submission to Jurisdiction; Appointment of Agent for Service. (a) The
Company and each of the Selling Shareholders irrevocably submit to the
non-exclusive jurisdiction of any New York State or United States federal court
sitting in The City of New York over any suit, action or proceeding arising out
of or relating to the obligations of the Company under this Agreement, the Time
of Sale Prospectus, the Prospectus, the Registration Statement, the ADR
Registration Statement or the offering of the ADSs. The Company and each of the
Selling Shareholders irrevocably waive, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. To the extent that the Company or any of the Selling
Shareholders has or hereafter may acquire any immunity (on the grounds of
sovereignty or otherwise) from the jurisdiction of any court or from any legal
process with respect to itself or its property, the Company and each of the
Selling Shareholders irrevocably waive, to the fullest extent permitted by law,
such immunity in respect of any such suit, action or proceeding.
(b) The Company hereby irrevocably appoints WNS North America Inc., with
offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇; each of
the Selling Shareholders (other than the Warburg Entities and British Airways)
hereby irrevocably appoints WNS North America Inc., with offices at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇; the Warburg Entities
hereby irrevocably appoint _______, with offices at ___________; and British
Airways hereby irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Counsel
Americas, British Airways plc, with offices at ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇▇
Boulevard, ▇▇▇▇▇▇▇ Heights, New York 11370, USA, as its agent for service of
process in any suit, action or proceeding described in the preceding paragraph
and agrees that service of process in any such suit, action or proceeding may be
made upon it at the office of such agent. The Company and each of the Selling
Shareholders waive, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect thereto. The
Company and each of the Selling Shareholders represent and warrant that such
agent has agreed to act as the Company's agent and the Selling Shareholders'
agent for service of process, respectively, and the Company and each of the
Selling Shareholders agree to take any and all action, including the
41
filing of any and all documents and instruments, that may be necessary to
continue such appointments in full force and effect.
12. Judgment Currency. If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent permitted by
law, that the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Underwriters could purchase United States
dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligation of each Seller
with respect to any sum due from it to any Underwriter or any person controlling
any Underwriter shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day following
receipt by such Underwriter or controlling person of any sum in such other
currency, and only to the extent that such Underwriter or controlling person may
in accordance with normal banking procedures purchase United States dollars with
such other currency. If the United States dollars so purchased are less than the
sum originally due to such Underwriter or controlling person hereunder, such
Seller agrees as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriter or controlling person against such loss. If the
United States dollars so purchased are greater than the sum originally due to
such Underwriter or controlling person hereunder, such Underwriter or
controlling person agrees to pay to such Seller an amount equal to the excess of
the dollars so purchased over the sum originally due to such Underwriter or
controlling person hereunder.
13. Foreign Taxes. All payments made by the Sellers under this Agreement, if
any, will be made without withholding or deduction for or on account of any
present or future taxes, duties, assessments or governmental charges of whatever
nature (excluding income taxes and franchise taxes that may be payable by the
Underwriters) imposed or levied by or on behalf of Jersey, India, Mauritius or
Sri Lanka or any political subdivision or any taxing authority thereof or
therein unless the Company or any of the Selling Shareholders is or becomes
required by law to withhold or deduct such taxes, duties, assessments or other
governmental charges. In such event, the Company or the relevant Selling
Shareholder, as applicable, will pay such additional amounts as will result,
after such withholding or deduction, in the receipt by each Underwriter and each
person controlling any Underwriter, as the case may be, of the amounts that
would otherwise have been receivable in respect thereof if such taxes, duties,
assessments or governmental charges had not been imposed, except to the extent
such taxes, duties, assessments or other governmental charges are imposed or
levied by reason of such Underwriter's or controlling person's (i) being
connected with Jersey, India, Mauritius or Sri Lanka other than by reason of its
being an Underwriter or a person controlling any Underwriter under this
Agreement or (ii) failure to comply with any reasonable certification,
identification or other reporting requirements concerning the nationality,
residence or identity of the Underwriter or person
42
controlling the Underwriter, as applicable, if such compliance is required as a
precondition to exemption from, or reduction in the rate of, deduction or
withholding of such taxes, provided that such compliance would not be
unreasonably burdensome or onerous in the reasonable judgment of the relevant
Underwriter or the person controlling such Underwriter.
14. Entire Agreement. (a) This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the ADSs,
represents the entire agreement between the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other, with respect
to the preparation of any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, the conduct of the offering, and the purchase and sale of the
ADSs.
(b) The Company and the Selling Shareholders acknowledge that in connection
with the offering of the ADSs: (i) the Underwriters have acted at arm's length,
are not agents of, and owe no fiduciary duties to, the Company, the Selling
Shareholders or any other person, (ii) the Underwriters owe the Company and the
Selling Shareholders only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company or the Selling Shareholders. The Company and each of
the Selling Shareholders waive to the full extent permitted by applicable law
any claims they may have against the Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the ADSs.
15. Counterparts. This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. Headings. The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
18. Notices. All communications hereunder shall be in writing and effective only
upon receipt and if to the Underwriters shall be delivered, mailed or sent to
the Managers at:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
43
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇;
and if to the Company shall be delivered, mailed or sent to:
WNS (Holdings) Limited
▇▇▇▇ ▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, Vikhroli(W)
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇;
and if to any of the Warburg Entities shall be delivered, mailed
or sent to:
[Warburg Pincus
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America]
and if to British Airways shall be delivered, mailed or sent to:
British Airways plc
Waterside ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and if to the Selling Shareholders (other than the Warburg
Entities and British Airways), shall be delivered, mailed or sent to ▇▇▇▇▇
▇▇▇▇▇, as attorney-in-fact on behalf of the Selling Shareholders (other than the
Warburg Entities and British Airways), at:
Mr. ▇▇▇▇▇ ▇▇▇▇▇, General Counsel
WNS (Holdings) Limited
▇▇▇▇ ▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, Vikhroli(W)
Mumbai 400 079, India.
[signature page follows]
44
Very truly yours,
WNS (HOLDINGS) LIMITED
By:
-----------------------------
Name:
Title:
WARBURG PINCUS PRIVATE
EQUITY VIII, L.P.,
WARBURG PINCUS
INTERNATIONAL PARTNERS, L.P.
AND
WARBURG, ▇▇▇▇▇▇ NETHERLANDS
INTERNATIONAL PARTNERS I, CV.
By: WARBURG PINCUS PARTNERS
LLC, as General Partner
By: WARBURG, ▇▇▇▇▇▇ & CO., as
Managing Member
By:
------------------------------
Name:
Title:
BRITISH AIRWAYS PLC
By:
-----------------------------
Name:
Title:
45
THE SELLERS named in Schedule I
hereto (excluding WNS (Holdings)
Limited, the Warburg Entities and
British Airways) and ▇▇▇▇▇▇▇▇
▇▇▇▇▇, acting severally
By:
-----------------------------
Name:
Title: Attorney-in-fact
[address]
46
Accepted as of the date hereof.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Deutsche Bank Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
Limited
By:
-----------------------------------------
Name:
Title:
By: Deutsche Bank Securities Inc.
By:
-----------------------------------------
Name:
Title:
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-----------------------------------------
Name:
Title:
47
SCHEDULE I
NUMBER OF
NUMBER OF ADDITIONAL
FIRM ADSs ADSs TO BE
SELLER TO BE SOLD SOLD
------ ---------- ----------
WNS (Holdings) Limited .................................. 4,473,684 --
Warburg Pincus Private Equity VIII, L.P. ................ -- 745,000
Warburg Pincus International Partners, L.P. ............. -- 715,200
Warburg, ▇▇▇▇▇▇ Netherlands International Partners I, CV -- 29,800
British Airways plc ..................................... 4,386,000 --
▇▇▇▇▇▇ ▇▇▇▇▇ ............................................ 215,183 --
The Trust ............................................... 1,075,925 --
▇▇▇▇ ▇▇▇▇▇▇ ............................................. -- 10,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ......................................... -- 32,000
Ajay ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ .................................... 50,000 --
▇▇▇▇▇▇ ▇▇▇▇▇▇ ........................................... 9,333 --
▇▇▇▇▇ ▇▇▇▇▇▇ ............................................ 88,182 --
Vivek Shivpuri .......................................... -- 14,000
▇.▇. ▇▇▇▇▇▇▇▇▇▇ ......................................... -- 15,000
▇▇▇▇ ▇▇▇▇▇▇ ............................................. 130,401 --
---------- ---------
Total: ........................................... 10,428,708 1,561,000
========== =========
I-1
SCHEDULE II
NUMBER OF FIRM ADSs
UNDERWRITER TO BE PURCHASED
----------- -------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited ....................
Deutsche Bank Securities Inc. .................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ............
Citigroup Global Markets Inc. .................................
UBS Securities LLC ............................................
----------
Total: ................................................ 10,428,708
==========
II-1
SCHEDULE III
TIME OF SALE PROSPECTUS
A. Preliminary Prospectus issued July 3, 2006
B. [identify all free writing prospectuses filed by the Company under Rule
433(d) of the Securities Act]
III-1
SCHEDULE IV
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP AGREEMENT
Number of
Directors Shares
--------- ---------
▇▇▇▇▇▇ ▇▇▇▇ 150,000
▇▇▇▇▇ ▇▇▇▇▇▇ --
▇▇▇▇▇ ▇▇▇▇▇▇ --
▇▇▇▇▇ ▇▇▇▇▇ --
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ --
▇▇▇▇▇▇ ▇▇▇▇▇ --
Guy Sochovsky --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ --
▇▇▇▇ ▇. ▇▇▇▇ --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ --
Number of
Executive Officers Shares
------------------ ---------
▇▇▇▇ ▇▇▇▇▇ --
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 75,000
Number of
Employee Shareholders Shares
--------------------- ---------
▇▇▇ ▇▇▇▇▇▇ 33,333
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 133,332
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 314,696
Francesco Paola 90,606
▇▇▇▇▇ ▇▇▇▇▇▇ 16,666
▇▇▇▇▇▇▇ Killoury 16,666
▇▇▇▇▇ ▇▇▇▇ 48,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 400,000
▇▇▇ ▇▇▇▇▇▇ 4,666
▇▇▇▇▇ Christmas 14,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 14,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 14,000
Janhvi ▇▇▇▇▇▇▇ ▇▇▇▇ 666
▇▇▇▇▇▇ ▇▇▇▇▇ 667
▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,700
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,000
▇▇▇▇ Egolton 1,666
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 191,666
IV-1
Number of
Other Shareholders Shares
--------------------- ---------
First Magnus Consulting LLC & First Magnus Financial Corporation 1,216,641
[▇. ▇▇▇▇▇ Foundation] [ ]
▇▇▇▇▇▇ Trust [ ]
[Shah Trust] [ ]
[▇▇▇▇▇▇▇▇ Trust] [ ]
IV-2
EXHIBIT A
[FORM OF LOCK-UP LETTER A]
_____________, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "MANAGERS") propose to enter into an
Underwriting Agreement (the "
UNDERWRITING AGREEMENT") with WNS (Holdings)
Limited, a company incorporated in Jersey, Channel Islands (the "COMPANY"),
providing for the U.S. public offering (the "PUBLIC OFFERING") by the several
Underwriters, including the Managers (the "UNDERWRITERS"), of American
Depositary Shares of the Company (the "AMERICAN DEPOSITARY SHARES"), each
representing one ordinary share, par value 10 Jersey ▇▇▇▇▇ per share, of the
Company (the "ORDINARY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of,
A-1
directly or indirectly, any Ordinary Shares or any securities convertible into
or exercisable or exchangeable for Ordinary Shares, (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or otherwise or (3) file any
registration statement with the Commission relating to the offering of any
American Depositary Shares, Ordinary Shares or any securities convertible into
or exercisable or exchangeable for Ordinary Shares. The foregoing sentence shall
not apply to transactions relating to (a) Ordinary Shares, American Depositary
Shares or other securities acquired in open market transactions after the
completion of the Public Offering, provided that no filing under Section 16(a)
of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), shall
be required or shall be voluntarily made in connection with subsequent sales of
American Depositary Shares, Ordinary Shares or other securities acquired in such
open market transactions, (b) transfers of Ordinary Shares or any security
convertible into Ordinary Shares as a bona fide gift or (c) distributions of
Ordinary Shares or any security convertible into Ordinary Shares to limited
partners or stockholders of the undersigned; provided that in the case of any
transfer or distribution pursuant to clause (b) or (c), (i) each donee or
distributee shall sign and deliver a lock-up letter substantially in the form of
this letter and (ii) no filing under Section 16(a) of the Exchange Act,
reporting a reduction in beneficial ownership of Ordinary Shares, shall be
required or shall be voluntarily made during the 180-day restricted period.
Notwithstanding the foregoing, the undersigned shall not be prohibited from
entering into a written sales plan designed to comply with Rule 10b5-1(c) under
the Exchange Act, so long as such plan does not allow for any sales thereunder
to be made until the expiration or termination of the restrictions set forth in
this letter. In addition, the undersigned agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for, or exercise any right with respect to, the
registration of any American Depositary Shares or Ordinary Shares or any
security convertible into or exercisable or exchangeable for American Depositary
Shares or Ordinary Shares. The undersigned also agrees and consents to the entry
of stop transfer instructions with the Company's transfer agent and registrar
against the transfer of the undersigned's Ordinary Shares except in compliance
with the foregoing restrictions.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day restricted period the Company
issues an earnings release or material news or a material event relating to the
Company occurs; or
A-2
(2) prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day restricted period;
the restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided that
in the case of clause (2) above, if no earnings results are released during the
16-day period, the 180-day restricted period will terminate on the last day of
the 16-day period.
The undersigned shall not engage in any transaction that may be restricted
by this agreement during the 34-day period beginning on the last day of the
initial restricted period unless the undersigned requests and receives prior
written confirmation from the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ that the restrictions
imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
---------------------------
(Name)
---------------------------
(Address)
A-3
EXHIBIT B
[FORM OF LOCK-UP LETTER B]
_____________, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "MANAGERS") propose to enter into an
Underwriting Agreement (the "
UNDERWRITING AGREEMENT") with WNS (Holdings)
Limited, a company incorporated in Jersey, Channel Islands (the "COMPANY"),
providing for the U.S. public offering (the "PUBLIC OFFERING") by the several
Underwriters, including the Managers (the "UNDERWRITERS"), of American
Depositary Shares of the Company (the "AMERICAN DEPOSITARY SHARES"), each
representing one ordinary share, par value 10 Jersey ▇▇▇▇▇ per share, of the
Company (the "ORDINARY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares or any
securities convertible into or exercisable or exchangeable for Ordinary Shares,
(2) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Ordinary
Shares, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Ordinary Shares or such other
B-1
securities, in cash or otherwise or (3) file any registration statement with the
Commission relating to the offering of any American Depositary Shares, Ordinary
Shares or any securities convertible into or exercisable or exchangeable for
Ordinary Shares. The foregoing sentence shall not apply to transactions relating
to (a) Ordinary Shares, American Depositary Shares or other securities acquired
in open market transactions after the completion of the Public Offering,
provided that no filing under Section 16(a) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), shall be required or shall be voluntarily
made in connection with subsequent sales of American Depositary Shares, Ordinary
Shares or other securities acquired in such open market transactions, (b)
transfers of Ordinary Shares or any security convertible into Ordinary Shares as
a bona fide gift, (c) transfers of Ordinary Shares or any security convertible
into Ordinary Shares, either during the undersigned's lifetime or on death by
will or intestacy to the undersigned's immediate family or to a trust the
beneficiaries of which are exclusively the undersigned and/or a member or
members of the undersigned's immediate family (provided that any such transfer
shall not be a sale) or (d) distributions of Ordinary Shares or any security
convertible into Ordinary Shares to limited partners or stockholders of the
undersigned; provided that in the case of any transfer or distribution pursuant
to clause (b), (c) or (d), (i) each donee, transferee or distributee shall sign
and deliver a lock-up letter substantially in the form of this letter and (ii)
no filing under Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of Ordinary Shares, shall be required or shall be
voluntarily made during the 180-day restricted period. For purposes of clause
(c), the term "immediate family" shall mean spouse, domestic partner, child,
lineal descendant or antecedent, father, mother, brother or sister and the
lineal descendants of such individuals. Notwithstanding the foregoing, the
undersigned shall not be prohibited from entering into a written sales plan
designed to comply with Rule 10b5-1(c) under the Exchange Act, so long as such
plan does not allow for any sales thereunder to be made until the expiration or
termination of the restrictions set forth in this letter. In addition, the
undersigned agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the Prospectus, make any
demand for, or exercise any right with respect to, the registration of any
American Depositary Shares or Ordinary Shares or any security convertible into
or exercisable or exchangeable for American Depositary Shares or Ordinary
Shares. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's Ordinary Shares except in compliance with the
foregoing restrictions.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day restricted period the Company
issues an earnings release or material news or a material event relating to the
Company occurs; or
(2) prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day restricted period;
the restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided that
in the case of clause (2) above, if no earnings results are
B-2
released during the 16-day period, the 180-day restricted period will terminate
on the last day of the 16-day period.
The undersigned shall not engage in any transaction that may be restricted
by this agreement during the 34-day period beginning on the last day of the
initial restricted period unless the undersigned requests and receives prior
written confirmation from the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ that the restrictions
imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
---------------------------
(Name)
---------------------------
(Address)
B-3
EXHIBIT C-1
[FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
C-1
EXHIBIT C-2
[FORM OF TAX OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
C-2
EXHIBIT C-3
[FORM OF NEGATIVE ASSURANCE LETTER OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
C-3
EXHIBIT D
[FORM OF OPINION OF MOURANT]
D-1
EXHIBIT E
[FORM OF OPINION OF AMARCHAND]
E-1
EXHIBIT F
[FORM OF OPINION OF ETUDE ▇▇▇▇▇▇▇ ▇▇▇▇]
F-1
EXHIBIT G
[FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇ & MAY]
G-1
EXHIBIT H
[FORM OF OPINION OF SIMCOCKS]
H-1
EXHIBIT I
[FORM OF OPINION OF WHITE & CASE LLP]
I-1