THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made as of the 26th day of October 2006. AMONG
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made as of the 26th day of October 2006.
AMONG
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(1) |
Cap Gemini S.A., a société anonyme organized under the laws of France (“Parent”); |
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(2) |
Capgemini North America, Inc., a corporation organized under the laws of the State of Delaware and a wholly owned subsidiary of Parent ("Purchaser"); and |
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(3) |
Household Investment Funding, Inc., a corporation organized under the laws of the State of Delaware (the "Seller"). |
RECITALS
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(A) |
Seller understands that Parent intends to enter into an Agreement and Plan of Merger (the “Merger Agreement”), which will provide, among other things, for the merger (the “Merger”) of CapGemini Financial Services, Inc., a Delaware corporation and a wholly owned direct subsidiary of Purchaser, with and into Kanbay International, Inc., a company incorporated in the State of Delaware (the “Company”), on the terms and subject to the conditions set out therein and that the Board of Directors of the Company has recommended that the stockholders of the Company adopt the Merger Agreement. |
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(B) |
Seller wishes to agree to sell the Company Equity Securities (as defined below) to Purchaser, and Purchaser desires to purchase the Company Equity Securities from Seller, on the terms and subject to the conditions set forth herein. |
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(C) |
The Board of Directors of the Company has approved the purchase by Purchaser of the Company Equity Securities from Seller. |
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein, intending to be legally bound hereby, the parties hereto agree as follows:
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Section 1. |
Sale and Purchase of Company Equity Securities. |
(a) Upon the terms and subject to the conditions of this Agreement, Seller shall sell, convey, assign, transfer and deliver, and Parent shall cause Purchaser to purchase, free and clear of all Encumbrances:
(i) all of the Shares, at a purchase price of $29.00 per Share, or $131,434,960 in the aggregate (the aggregate purchase price of the Shares being referred to herein as the “Share Purchase Price”);
(ii) all of the 1999 Warrants, at a purchase price of $25.6446 per 1999 Warrant, or $5,732,183.57 in the aggregate (the aggregate purchase price of the 1999 Warrants being referred to herein as the “1999 Warrant Purchase Price”); and
(iii) all of the 2000 Warrants, at a purchase price of $21.36 per ▇▇▇▇ ▇▇▇▇▇▇▇, or $7,957,454.40 in the aggregate (the aggregate purchase price of the 2000 Warrants being referred to herein as the “2000 Warrant Purchase Price”).
The total of the Share Purchase Price, the 1999 Warrant Purchase Price and the 2000 Warrant Purchase Price is $145,124,597.97 (the “Purchase Price”).
(b) Additional Payment. In the event that the Merger is not consummated and a transaction is completed pursuant to which Purchaser receives (directly or indirectly) consideration for the Shares, the 1999 Warrants and the 2000 Warrants, which is in excess of the Share Purchase Price, the 1999 Warrant Purchase Price, and the 2000 Warrant Purchase Price, respectively, (valuing any non-cash consideration at the fair market value of such consideration at the date of settlement of such transaction, net of any transaction costs incurred in connection with any resale of such non-cash consideration), Purchaser shall, within five Business Days after such transaction is completed, pay to Seller fifty percent (50%) of the excess of such consideration over the Share Purchase Price, 1999 Warrant Purchase Price, and 2000 Warrant Purchase Price, respectively.
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Section 2. |
Completion. |
(a) Completion. Completion of the sale and purchase of the Company Equity Securities pursuant to this Agreement (the “Completion”) shall take place as soon as practicable, but no later than 3 Business Days (the date of Completion being the “Completion Date”), following the satisfaction or waiver of all conditions set forth in paragraph (b) below. Completion shall take place at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 10:00 a.m., local time, on the Completion Date.
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(b) |
Conditions to Completion. |
(i) The obligation of the Purchaser to purchase the Company Equity Securities and the obligation of the Seller to sell the Company Equity Securities to the Purchaser shall be subject to the satisfaction of the following conditions:
(1) No Orders. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order, which (i) is in effect (ii) has the effect of making the sale and purchase of the Company Equity Securities pursuant to this Agreement, illegal or otherwise prohibiting, restraining or preventing consummation of the sale and purchase of the Company Equity Securities pursuant to this Agreement and (iii) is final, binding and non-appealable.
(2) Antitrust Approval. The applicable waiting period (and any extension thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (if required) (the “HSR Act”), relating to the purchase of the
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Company Equity Securities pursuant to this Agreement will have expired or been terminated.
(ii) The obligation of the Purchaser to purchase the Company Equity Securities shall be subject to the satisfaction of the following conditions:
(1) Representations and Warranties. The representations and warranties of the Seller set forth in Section 3(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Completion Date, as though made on and as of the Completion Date. The representations and warranties of the Seller set forth in Section 3(a) of this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Completion Date, as though made on and as of the Completion Date.
(2) Agreements and Covenants. The Seller shall have performed or complied with, in all material respects, all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Completion.
(c) Completion Deliveries. Completion shall not be deemed to have been completed unless and until all of the following deliveries and actions have been taken.
(i) By the Seller. At Completion, Seller shall deliver to Purchaser a stock transfer form duly and validly executed by Seller sufficient to vest in Purchaser good title to the Company Equity Securities free and clear of all Encumbrances.
(ii) By the Purchaser: At Completion, Purchaser shall deliver to Seller the Purchase Price in cash by wire transfer in immediately available funds to an account designated by Seller and notified to Purchaser at least two Business Days prior to Completion.
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Section 3. |
Representations and Warranties. |
(a) Each of Seller and Purchaser represents and warrants as to itself as follows as of the date hereof and as of the Completion Date: (i) it has full power and authority to make, enter into and carry out the terms of this Agreement, which when executed will constitute binding obligations on it in accordance with its terms; (ii) the execution and delivery of this Agreement by it does not, and its performance of its obligations under this Agreement will not, conflict with or violate or require any consent, approval or notice under (except as may be required under the HSR Act), any order, decree, judgment, statute, law, rule, regulation or agreement applicable to it or by which it or any of its properties or assets, is bound; and (iii) it may execute, deliver and perform this Agreement without the necessity of obtaining any consent, approval, or authorisation of any Person, and without the necessity of giving any notice to any Person, except for such consents, authorisations and approvals that have heretofore been unconditionally and irrevocably obtained and such notices that have heretofore been given and except as may be required under the HSR Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
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(b) Seller represents and warrants as of the date hereof and as of the Completion Date that Seller is the “Beneficial Owner” (as determined pursuant to Rule 13d-3 under the Exchange Act) of: (i) 4,532,240 shares of common stock of the Company, par value $0.001 per share (the “Shares”); (ii) 223,524 warrants issued pursuant to the Class A Common Stock Purchase Warrant dated October 18, 1999, subsequently replaced on September 4, 2003, subsequently replaced on July 27, 2004 (the “1999 Warrants”); and (iii) 372,540 warrants issued pursuant to the Warrant to Purchase Common Stock No. CA-002 dated September 14, 2000, subsequently replaced on July 27, 2004 (the “2000 Warrants”, and together with the Shares and the 1999 Warrants, the “Company Equity Securities”). The Company Equity Securities are, and at all times up to and including the Completion Date the Company Equity Securities will be, Beneficially Owned by Seller, free and clear of any rights of first refusal, co-sale rights, security interests, liens, pledges, claims, options, charges, proxies, voting trusts or agreements, understandings or arrangement, or any other encumbrances of any kind or nature (“Encumbrances”). Seller does not Beneficially Own any shares of capital stock of the Company or any securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, other than the Company Equity Securities. Seller has the full power to dispose, vote or direct the voting of the Company Equity Securities for and on behalf of all beneficial owners of the Company Equity Securities.
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Section 4. |
Acquisition Proposals. |
(a) No Solicitation. Until the earlier to occur of such date and time as (such date, the “Termination Date”),
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(i) |
the Merger becomes effective, |
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(ii) |
the Merger Agreement shall have been validly terminated by Parent, | |
(iii) the Merger Agreement and the Merger shall have been submitted to the stockholders of the Company at a duly convened meeting of the stockholders for the purpose of approving the Merger Agreement and the Merger and the required approval of the stockholders of the Company contemplated by the Merger Agreement shall not have been obtained by reason of the failure to obtain the required vote at such meeting or at any adjournment thereof,
(iv) the Merger Agreement shall have been validly terminated by the Company pursuant to Sections 7.1(a), (b), (c) or (f) of the Merger Agreement,
(v) the Merger Agreement shall have been validly terminated by the Company pursuant to Section 7.1(i) and Parent shall not have required the Company to submit the Merger Agreement to the stockholders of the Company pursuant to Section 5.2 of the Merger Agreement, and
(vi) this Agreement shall have been terminated prior to Completion in accordance with Section 7(b),
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Seller agrees that it shall not, and that it shall use all reasonable efforts to cause Seller's employees, agents and representatives (including any investment banker, attorney or accountant retained by Seller) not to (and shall not authorize any of them to), directly or indirectly: (i) solicit or initiate or knowingly encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action to knowingly encourage or facilitate any inquiries or the making of any proposal that constitutes or would reasonably be expected to lead to, any Acquisition Proposal, (iii) approve, endorse, recommend or make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal, (iv) issue a public statement that Seller supports any other Acquisition Proposal or (v) execute or enter into, or propose to execute or enter into, any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby.
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Section 5. |
Additional Covenants |
(a) Public Statement. Seller agrees that, promptly after execution of the Merger Agreement, a public statement will be issued in form and substance mutually agreed by Seller and Purchaser, which statement will provide to the effect that Seller is selling its ownership interest in the Company and intends to waive its termination right under the Contract (as defined below) resulting from (i) Completion or (ii) completion of the Merger. Except as provided in the foregoing sentences, no party shall, without the prior written consent of the other, issue or make, directly or indirectly, any reports, statements or releases to the public with respect to this Agreement or the transactions contemplated hereby; provided, however, that a party and its affiliates may, without the prior written consent of the other, issue or make any report, statement or release required by law or any listing agreement or arrangement with a national securities exchange or national market system to which such party or any of its affiliates is subject, provided, further however, that, to the extent practicable, the other party to this Agreement is so notified as soon as possible in advance of such report, statement or release and, to the extent practicable, given a reasonable opportunity to review and comment on the report, statement or release.
(b) Waiver. Seller shall cause HSBC Holdings plc not to exercise its right to terminate the Consultancy Services Global Supply Agreement dated April 19, 2005 with Kanbay Europe Ltd. (the “Contract”) pursuant to Section 18.1(b) thereof resulting from (i) Completion or (ii) completion of the Merger. Nothing in this Section 5(b) shall be construed to be a waiver of any other rights that Seller or HSBC Holdings plc may have under the Contract or to otherwise limit, preclude or adversely affect the rights of Seller or HSBC Holdings plc under the Contract.
(c) Further Assurances. Seller and Purchaser hereby covenant and agree to take such further actions as may be reasonably necessary or desirable to carry out the purposes and intent of this Agreement.
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(d) HSR Filing. Each of Parent, Purchaser and Seller shall coordinate and cooperate with one another and shall each use all commercially reasonable efforts to make, as promptly as practicable after the date hereof all filings, notices, petitions, statements, registrations, submissions of information, applications or submissions of other documents required by any Governmental Entity in connection with the transactions contemplated by this Agreement, including, without limitation, Notification and Report Forms with the FTC and the DOJ and use commercially reasonable efforts in responding to requests for additional information and documentary material from the FTC and the DOJ as required by the HSR Act. Each of Parent, Purchaser and Seller will cause all documents that it is responsible for filing with any Governmental Entity under this paragraph (d) to comply in all material respects with all applicable legal requirements. Parent, Purchaser and Seller each shall promptly supply the other with any information that may be required in order to effectuate any filings or applications pursuant to this paragraph (d).
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Section 6. |
Stockholder Capacity. |
Nothing in this Agreement shall be construed as preventing or otherwise affecting any actions taken by any representative of Seller on the Board of Directors of the Company, in his capacity as director of the Company, from fulfilling the obligations of such office (including, subject to the limitations contained in Section 5.3 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of such representative acting solely in his or her capacity as a director).
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Section 7. |
Termination. |
(a) Effectiveness. This Agreement shall become effective upon execution of the Merger Agreement.
(b) Early Termination. This Agreement may be terminated at any time prior to Completion as follows:
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(i) |
by mutual written consent of Purchaser and Seller; | |
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(ii) |
by Purchaser or Seller, if: |
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(1) the Merger Agreement shall have been validly terminated by Parent,
(2) the Merger Agreement and the Merger shall have been submitted to the stockholders of the Company at a duly convened meeting of the stockholders for the purpose of approving the Merger Agreement and the Merger and the required approval of the stockholders of the Company contemplated by the Merger Agreement shall not have been obtained by reason of the failure to obtain the required vote at such meeting or at any adjournment thereof,
(3) the Merger Agreement shall have been validly terminated by the Company pursuant to Sections 7.1(a), (b), (c) or (f) of the Merger Agreement,
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(4) the Merger Agreement shall have been validly terminated by the Company pursuant to Section 7.1(i) and Parent shall not have required the Company to submit the Merger Agreement to the stockholders of the Company pursuant to Section 5.2 of the Merger Agreement, and
(iii) by Purchaser, upon a breach of any representation, warranty, covenant or agreement on the part of Seller set forth in this Agreement; provided, however, that if such breach is curable through the exercise of reasonable efforts within the earlier of 15 days following the receipt of written notice from the Purchaser of such breach and the date of the stockholders meeting convened pursuant to the Merger Agreement, Purchaser may not terminate this Agreement under this Section prior to such earlier date; provided further that Seller continues to exercise all reasonable efforts to cure such breach through such 15-day period; and
(iv) by Seller, upon a breach of any representation, warranty, covenant or agreement on the part of Purchaser set forth in this Agreement; provided, however, that if such breach is curable through the exercise of reasonable efforts within the earlier of 15 days following the receipt of written notice from the Seller of such breach and the date of the stockholders meeting convened pursuant to the Merger Agreement, Seller may not terminate this Agreement under this Section prior to such earlier date; provided further that Purchaser continues to exercise all reasonable efforts to cure such breach through such 15-day period.
(c) Effect of Termination. Any termination of this Agreement under Section 7(b) above will be effective immediately upon delivery of a valid written notice of the terminating party to the other party hereto. In the event of the termination of this Agreement as provided in Section 7(b), this Agreement shall be of no further force or effect, except for the provisions which survive termination of this Agreement in accordance with their terms and Section 8, which shall survive termination of this Agreement.
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Section 8. |
Definitions. |
(a) Definitions. For all purposes of this Agreement, except as otherwise expressly provided in this Agreement:
(i) “Acquisition Proposal,” shall mean, with respect to the Company, any offer or proposal relating to any transaction or series of related transactions involving: (a) any purchase or acquisition by any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a 15% interest in the total outstanding voting securities of the Company or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any Person or group beneficially owning 15% or more of the total outstanding voting securities of the Company or any of its subsidiaries, (b) any merger, consolidation, business combination or similar transaction involving the Company or any of its subsidiaries, (c) any sale, lease (other than in the ordinary course of business consistent with past practice), exchange, transfer, license (other than in the ordinary course of business consistent with past practice), acquisition or disposition of more than 15% of the assets of the Company
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(including its subsidiaries taken as a whole) or (d) any liquidation or dissolution of the Company (provided, however, that the transactions between Parent and the Company contemplated by the Merger shall not be deemed an Acquisition Proposal).
(ii) "Business Day" shall mean each day that is not a Saturday, Sunday or other day on which Purchaser is closed for business or banking institutions located in Chicago, Illinois, United States of America or Paris, France are authorized or obligated by law or executive order to close. For all purposes hereof, any action required to be performed on any day which is not a Business Day, or any period for giving notice or taking any action or otherwise which ends on a day which is not a Business Day, shall be deemed to be a day which is the next Business Day.
(iii) “Governmental Entity” shall mean any supranational, national, state, municipal, local or foreign government, any instrumentality, subdivision, court, arbitral body, administrative agency, commission or other instrumentality or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental functions.
(iv) “Person” means any (i) individual, (ii) corporation, limited liability company, partnership or other entity, or (iii) Governmental Entity.
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Section 9. |
Miscellaneous. |
(a) Survival. The representations and warranties of Parent and Seller contained in Section 3 hereof shall survive termination of this Agreement until the first anniversary of the Completion Date.
(b) Fees and Expenses. All costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated herein shall be paid by the party incurring such expenses; provided, however, that Purchaser shall pay for all costs and expenses incurred by Seller in connection with Seller’s obligations under Section 5(d) hereof, up to a maximum amount of $15,000.
(c) Consent to References. The Seller agrees that Company and Purchaser shall be entitled to include in the Proxy Statement and the announcement of the Merger disclosure to the effect that Seller has agreed to sell the Company Equity Securities to the Purchaser; provided that the Seller shall review and approve in writing and in advance such disclosure.
(d) Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally or by courier service, (ii) on the date of confirmation of receipt (or the first Business Day following such receipt if the date is not a Business Day) if sent via facsimile (receipt confirmed), or (iii) on the date of confirmation of receipt (or the first Business Day following such receipt if the date is not a Business Day) if delivered by a nationally recognized courier service. All notices hereunder shall be delivered to the parties at the following addresses or facsimile numbers (or pursuant to such other instructions as may be designated in writing by the party to receive such notice):
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if to Purchaser, to: |
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇
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and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP
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if to the Seller, to: |
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Household Investment Funding, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇
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with a copy to (which shall not constitute notice to the Company):
▇▇▇▇▇▇ ▇▇▇▇ LLP
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Attention: |
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(e) Headings. All captions and section headings used in this Agreement are for convenience only and do not form a part of this Agreement.
(f) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
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(g) Entire Agreement; No Third Party Beneficiaries. This Agreement and any other agreement or instrument contemplated hereby constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and thereof. This Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder.
(h) Specific Performance. The parties hereto agree that irreparable damages would occur in the event that any provision in this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity that may be available, and the parties waive the posting of any bond or security in connection with any proceedings related thereto. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any of the parties shall not preclude the simultaneous or later exercise of any other such right, power or remedy by Purchaser.
(i) Waivers and Amendments; Non-Contractual Remedies. This Agreement may be amended, superseded, cancelled, renewed or extended, only by a written instrument signed by Seller and Purchaser or, in the case of a waiver, only by a written instrument signed by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any right or remedies that any party may otherwise have at law or in equity.
(j) Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, permitted assigns and legal representatives. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties.
(k) Severability. Any term or provision of this Agreement that is determined by a court of competent jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any terms or provisions of this Agreement in any other jurisdiction, and if any provision of this Agreement is determined to be so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable, in all cases so long as neither the economic nor legal substance of the transactions contemplated herein is affected in any manner materially adverse to any party or its shareholders. Upon any such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.
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(l) Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(m) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process.
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IN WITNESS whereof this Agreement has been duly executed by the parties hereto the day and year first before written.
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CAPGEMINI NORTH AMERICA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Director
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HOUSEHOLD INVESTMENT FUNDING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Title: Vice President
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Chief Executive Officer
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