Exhibit 10.1


 


Execution
1-A


 






 


SHARE PURCHASE AGREEMENT


 


AS OF AUGUST 14, 2008


 






 


GENERAL ELECTRIC CAPITAL CORPORATION


(“GE Capital”)


and


 


GE CONSUMER FINANCE, INC.


(“GE Finance” , collectively with GE Capital, the “Shareholders”
or the “Sellers”);


 


and


 


GENPACT LUXEMBOURG S.A R.L.,


(“GENPACT I”)


 


and


 


GENPACT LIMITED


 


(“Genpact II”, collectively with Genpact I the “Buyers”)


 

















 


THIS
SHARE PURCHASE AGREEMENT
dated as of August 14, 2008 (hereinafter, the “Agreement”) is
entered into by and between:


 


GENERAL ELECTRIC CAPITAL CORPORATION (“GE CAPITAL”) and GE CONSUMER
FINANCE, INC.  (“GE FINANCE”; collectively
with GE Capital, the “Sellers”); and,


 


GENPACT LUXEMBOURG S.A R.L. (“GENPACT I”) and GENPACT LIMITED (“Genpact
II”; collectively with Genpact I, the “Buyers”).


 


W I T N E S S E T H


 


WHEREAS, GE MONEY ADMINISTRACIONES-GUATEMALA, S.A.,
a Guatemalan entity (the “Administrator”) is the sub-lessee under a sub-lease
(the “Sublease”) of a facility (the “Facility”) where a building of
approximately ten thousand square meters (10,000 m2) was built to operate a
call center for Genpact User and the GE User, and banking operations for BAC
(all as defined below);


 


WHEREAS, Sellers represent that (i) the
Administrator has the authorization (the “FTZ Administrator Authorization”)
granted by the Ministry of Economy of Guatemala (the “Ministry of Economy”) to
operate and act as registered administrator of a tax free zone located at Avenida Petapa 38-39 zone 12, Guatemala City, Guatemala (the
“Tax Free Zone”) where the Facility is located, and (ii) SERVICIOS
INTERNACIONALES DE ATENCION AL CLIENTE, S.A., a Guatemalan entity (the “Genpact
User”, and collectively with the Administrator, the “Acquired Companies”) has
the authorization (the “FTZ Genpact User Authorization”) granted by the
Ministry of Economy to act as a registered user of the Tax Free Zone;


 


WHEREAS, Shareholders directly own all of the issued
and outstanding shares of each of the Acquired Companies in that GE Capital
owns two hundred and fifty (250) shares of the Administrator and two hundred
and fifty (250) shares of the Genpact User, and GE Finance owns four thousand
seven hundred and fifty (4,750) shares of the Administrator and four thousand
seven hundred and fifty (4,750) shares of the Genpact User;


 


WHEREAS, the Buyers desire to purchase and the
Shareholders have agreed to sell to Buyers, all of the issued and outstanding
shares of each of the Acquired Companies (the “Purchased Shares”) held by the
Shareholders, such that following such acquisition, the Buyers will own all of
the shares of each of the Acquired Companies;


 


WHEREAS, the Parties desire to enter into this
Agreement in order to evidence the terms and conditions regarding the sale by
the Shareholders and purchase by the Buyers of the Purchased Shares.


 


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NOW
THEREFORE, in
consideration of the foregoing and the mutual agreements contained herein, the
Parties hereto agree as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.1             Definitions.  Unless otherwise defined
herein, capitalized terms used but not defined in this Agreement shall have the
meanings set forth in Annex I hereto.


 


Section 1.2             Construction; Absence of Presumption.  In
this Agreement:


 


(a)                                  a reference to a statutory provision includes
a reference to the statutory provision as modified or re-enacted or both from
time to time before the date of this Agreement and any subordinate legislation
made under the statutory provision (as so modified or re-enacted) before the
date of this Agreement;


 


(b)                                 For the purposes of this Agreement, (i) words
(including capitalized terms defined herein or in Annex I) in the singular
shall be held to include the plural and vice  versa and words
(including capitalized terms defined herein or in Annex I) of one gender shall
be held to include the other gender as the context requires; (ii) the
terms “hereof,” “herein” and “herewith” and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole
(including all Exhibits, Schedules and Annexes) and not to any particular
provision of this Agreement, and Article, Section, paragraph, Schedule, Annex
and Exhibit references are to the Articles, Sections, paragraphs,
Schedules, Annexes and Exhibits to this Agreement, unless otherwise specified; (iii) the
words “including” and “such as” and words of similar import when used in this
Agreement shall mean “including, without limitation”; (iv) all references
to any period of days shall be deemed to be to the relevant number of calendar
days, unless otherwise specified; (v) the word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends,
and such phrase shall not mean simply “if”; (vi) all references herein to “$”
or dollars shall refer to United States dollars, unless otherwise specified; (vii) the
phrase “date hereof” or “date of this Agreement” shall be deemed to refer to July 1,
2008; and (viii) unless otherwise indicated, whenever used in this
Agreement, any noun or pronoun shall be deemed to include the plural as well as
the singular and to cover all genders.


 


(c)                                  The Parties hereby acknowledge that each
Party and its counsel have reviewed and revised this Agreement and that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting Party shall be employed in the interpretation of this Agreement
(including all of the Exhibits) or any amendments hereto or thereto.


 


(d)                                 The table of contents and Article and Section headings
contained in this Agreement are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement.


 


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ARTICLE II

SALE AND PURCHASE


 


Section 2.1             Sale and Purchase.  At
the Closing, the Shareholders shall sell, convey, transfer and deliver to the
Buyers, and the Buyers shall purchase from the Shareholders, the Purchased
Shares with good title and free and clear of any Encumbrance.   The Sellers shall deliver the certificates
representing the Purchased Shares, duly endorsed, sufficient in form and
substance to convey to the Buyers good title to all of the Purchased Shares,
free and clear of all Encumbrances, as well as the Shareholder’s Registry Book
of each of the Acquired Companies, with the endorsements duly recorded as
evidence of completion of the transfer of the Purchased Shares.


 


Section 2.2.            Purchase
Price.


 


a)                                  The purchase price
for the Purchased Shares payable at the Closing shall be Seven Million Fifteen
Thousand, and Eight Dollars ($7,015,008.00)
(the “Purchase Price”), and shall be payable in the manner set forth in Section 2.3.


 


Section 2.3             Payment
of Purchase Price.  The Buyers shall
pay a portion of the Purchase Price at Closing to the respective Shareholders
by wire transfer of immediately available funds to the Shareholders’ bank
accounts (the “Closing Payment”) and shall pay Three Million Two Hundred and
Eighty-Three Thousand, Six Hundred and Ninety-Seven Dollars ($3,283,697 )
of the Purchase Price to GE Capital to pay off loans to the Acquired Companies
in full, all as set forth on Schedule 2.3 hereto.


 


Section 2.4             Post-Closing
Purchase Price Adjustment


 


a)                                  One hundred and twenty (120) days after the
Closing, the Buyers shall prepare a net investment statement, dated as of the
Closing Date (the “Revised Net Investment Statement”), setting forth (i) the
actual cost paid by Sellers, Administrator or GE User of all the assets of the
Acquired Companies as well as the assets transferred to the Acquired Companies
in accordance with Section 7.5, plus (ii) and the actual costs paid
by Sellers, Administrator or GE User for setting up the Acquired Companies and
commencing the Business, plus (iii) the aggregate actual costs paid by
Sellers, Administrator or GE User for compensation and benefits for each
employee transferred, or scheduled to be transferred, to Genpact User from July 1,
2008 until December 1, 2008, plus (iv) the aggregate actual
reasonable costs paid by Sellers, Administrator or GE User from July 1,
2008 until December 1, 2008 to obtain services to be provided under the
Shared Services Agreement, minus (v) the aggregate amount calculated by
multiplying the annual rate of $25,900 times the number of FTE transferred, or
scheduled to be transferred, to Genpact User, in case of each employee for the
number of days that each such employee is employed during the period between July 1,
2008 and the Closing Date, less (vi) the aggregate amount calculated by
multiplying the annual rate of $12,800 by the number of GE User FTEs for the
number of days from July 1, 2008 until the Closing Date.  The Revised Net


 


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Investment Statement shall contain the true and accurate cost for all
items listed therein all in accordance with GAAP.  If the total amount shown for such costs on
the Revised Net Investment Statement exceeds the total shown for costs on the
Net Investment Statement, the Buyers shall pay the difference to the
Sellers.  If the total amount shown for
such costs on the Revised Net Investment Statement is less than the total costs
shown on the Net Investment Statement, the Sellers shall pay the difference to
the Buyers.


 


b)                                     If the Sellers disagree with the calculation
of the Revised Net Investment Statement, the Parties will resolve any
disagreements among themselves in accordance with Sections 14.9 and 14.10.


 


ARTICLE III

CLOSING


 


Section 3.1             Date of Closing.  The
closing (the “Closing”) of the transactions described in Article II
shall take place on August 14, 2008 and after the Sellers have transferred
to the Administrator and the Genpact User the employees, assets and contracts
as provided in Article VII and the schedules thereunder to be transferred
prior to the Closing Date, or such other later date as may be agreed to by the
Parties in writing, subject to satisfaction or waiver of all conditions to
Closing herein contained (the “Closing Date”). 
The Parties acknowledge that time of the Closing is of the essence.


 


Section 3.2             Place of Closing.  The
Closing shall take place at the offices of the Sellers’ Counsel A.D. Sosa &
Soto located at 15 calle “A” 14-44 zona 10, Guatemala, Guatemala,  at 11:30 a.m. EDT, 9:30 am (local time)
on the Closing, or such other time and place as the Parties may agree.


 


Section 3.3             Contemporaneous Timing.  Except as otherwise provided herein, all
proceedings to be taken and all documents to be executed at the Closing shall
be deemed to have been taken, delivered and executed simultaneously.


 


Section 3.4             Closing Deliveries.  At
the Closing, (a) the Sellers shall make the deliveries referred to in Section 8.2;
and (b) the Buyers shall make the deliveries referred to in Section 9.4.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE SELLERS


 


Each
of the Sellers, jointly and severally, makes the following representations and
warranties to the Buyers, each of which is true and correct as of the Effective
Date and as of the Closing Date and shall be unaffected by any investigation
heretofore or hereafter made by the Buyers.


 


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Section 4.1             Right, Power, Authority and Action.


 


a)                                      Each of the Sellers has the requisite
capacity, power and authority, and has taken all action necessary, to execute,
deliver and exercise its rights, and perform its obligations, under this
Agreement and each Transaction Document.


 


b)                                     Each of the Acquired Companies is duly
organized and validly existing as a legal entity (sociedad
anónima) under the laws of Guatemala and each has the requisite
power and authority to own, lease or otherwise hold the assets owned, leased or
otherwise held by it and to carry on its business as presently conducted by it
and as contemplated by the Transaction Documents. Each of the Acquired
Companies is properly qualified to do business in each jurisdiction in which it
conducts business.


 


c)                                   The Administrator has been granted the FTZ
Administrator Authorization, and such authorization is in full force and
effect.


 


d)                                     The Genpact User has been granted the FTZ
Genpact User Authorization, and such authorization is in full force and effect,
subject to receipt of certain administrative clarifications.


 


e)                                      As of the Effective Date, each of the
Acquired Companies has all the required Governmental Authorizations to do its
business as currently undertaken and as contemplated by the Transaction
Documents.  As of the Effective Date,and
as of the Closing Date, (i) all Governmental Authorizations are valid and
in full force and effect; (ii) no Acquired Company is in default, and no
condition exists that with notice or lapse of time or otherwise would
constitute a default, under any Governmental Authorization; (iii) neither
the Sellers, the GE User nor or any Acquired Company has received any written,
or oral, notice from any Governmental Authority relating to the revocation or
adverse modification of any Governmental Authorizations, the loss of which,
individually or in the aggregate, has had or would reasonably be expected
adversely to effect the business of the Acquired Companies either as presently
existing or contemplated by the Transaction Documents; and (iv), no
Governmental Authorization shall be terminated or impaired or shall become
terminable, or shall be suspended, modified, revoked or become nonrenewable in
any material respect, in whole or in part, as a result of the transactions contemplated
by this Agreement or the Transaction Documents.


 


f)                                        Each of the Acquired Companies will own,
possess, license, lease, have control of or have rights to use in accordance
with the same contractual terms as are applicable on the date of this Agreement
which shall be the same terms applicable at Closing, all material assets
(except material Contracts and Intellectual Property, which shall be
transferred to the Acquired Companies within (30) days of the Closing and
further subject to the exception stated in (iii) below) necessary to
conduct the Business as the same will be conducted on the Closing Date and as 


 


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contemplated in the Transaction Documents, and (i) they are not in
default, and no condition exists that with notice or lapse of time or otherwise
would constitute a default, under any Contract; (ii) they have not
received any written, or oral, notice from any counterparty to any Contract
relating to a potential default of a Contract, the loss of which, individually
or in the aggregate, has had or would reasonably be expected adversely to
effect the business of the Acquired Companies either as presently existing or
contemplated by the Transaction Documents; and (iii) no such Contract
shall be terminated or impaired or shall become terminable, or shall be
suspended, modified, defaulted or become nonrenewable in any material respect,
in whole or in part, as a result of the transactions contemplated by this
Agreement or the other Transaction Documents except for GE Corporate Contracts,
such Contracts that may be terminated due to change of control provisions or
such contracts as are agreed by the Parties, all of which are listed on
Schedule 7.6.


 


Section 4.2             Binding Agreements.  This
Agreement constitutes or will constitute, assuming due authorization, execution
and delivery by the Buyers, a legal, valid and binding obligation of each of
Sellers enforceable against it in accordance with its terms. The Sellers are in
compliance with each Transaction Document and each Contract as to which such
Seller is a party.


 


Section 4.3             No Conflict.  The
execution and delivery of and the performance by either of the Sellers of its
obligations under this Agreement do not, and the performance or consummation by
each of the Shareholders as the case may be of the transactions contemplated
hereby to be performed by it, does not:


 


a)                                      conflict with any provision of the memorandum
or articles of incorporation or association or the by-laws or equivalent
constitutional documents of any such Person;


 


b)                                     conflict with, or result in any violation of,
or constitute a default (with or without notice or lapse of time, or both), be
prohibited by, cause or give rise to a right of cancellation or termination of,
require any additional approval under, result in any penalty under, increase
any benefit payable or reduce any benefit received under, or accelerate the
performance provided or required under any Contract to which such Person or
either Acquired Company is a party or by which any of its properties is bound;


 


c)                                      after the completion of (30) days after the
Closing, result in a breach or be prohibited by, cause or give rise to a right
of cancellation or termination of, require any additional approval under,
result in any penalty under, increase any benefit payable or reduce any benefit
received under, or accelerate the performance provided or required by any
order, judgment or decree of any court or governmental agency to which such
Person or either Acquired Company is a party or by which such Person or either
Acquired Company is bound or submits;


 


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d)                                     result in the creation of an Encumbrance upon
any of the assets of either Acquired Company; or


 


e)                                      require such Person to obtain any consent or
approval of, or give any notice to or make any registration with, any third
party or governmental or other authority which has not been obtained or made as
of the date hereof (including, without limitation, any consent, approval or
authorization with respect to any Contract or License) except for GE Corporate
Contracts, such Contracts that may be terminated due to change of control
provisions or such contracts as are agreed by the Parties, all of which are
listed on Schedule 7.6.


 


Section 4.4             Approvals.  There are no notices, reports
or other filings required to be made by Sellers or any Acquired Company with,
or consents, registrations, approvals, permits, licenses, certificates or other
authorizations required to be obtained by Sellers or any Acquired Company from
any Governmental Authority or other third party in order for Sellers to execute
or deliver this Agreement, to perform their respective obligations hereunder,
or to consummate the transactions contemplated hereby and by the Transaction
Documents.


 


Section 4.5             Title to Shares.


 


a)                                      Each of the Shareholders is the sole legal
and beneficial owner of all of the issued and outstanding shares of capital
stock of the Acquired Companies set forth by its name in Schedule 4.5.


 


b)                                     The Purchased Shares were validly issued, are
fully paid and non-assessable and comprise the whole of the allotted, issued
and outstanding share and equity capital of the Acquired Companies.


 


c)                                      Other than this Agreement, there is no
agreement, arrangement or obligation requiring the creation, allotment, issue,
transfer, redemption or repayment of, or the grant to a Person of the right
(conditional or not) to require the allotment, issue, transfer, redemption or
repayment of, a share or a depositary receipt in the capital of the Acquired
Companies (including, without limitation, an option or right of pre-emption or
conversion).


 


d)                                     There is no Encumbrance on or in relation to
any of the Purchased Shares.  Upon
consummation of the Transactions contemplated hereby in accordance with the
terms hereof, each of the Buyers will (i) hold good and valid title to the
Purchased Shares set forth by its name in Schedule 4.5, free and clear of any
and all Encumbrances; and (ii) will directly own all of the issued and
outstanding equity interests of the Acquired Companies.


 


Section 4.6             Subsidiaries. 
Neither of the Acquired Companies has any Subsidiary or any interest in
any other Person.


 


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Section 4.7             Assets. The sole assets of the Administrator are those set forth by its name
in Schedule 4.7(a) as of the date of this Agreement, and on or before the
Closing the Sellers shall transfer to the Genpact User those assets set forth
in Schedule 4.7(b) .  Each of the
Acquired Companies has, or will have on the date of transfer,  good and valid title, free and clear of all
Encumbrances, to all of the assets set forth under its name in Schedules 4.7(a) and
(b).


 


Section 4.8             Taxes.


 


a)                                      All Tax Returns that were required to be
filed by or with respect to each of the Acquired Companies have been timely
filed, with the exception of the filings listed in Schedule 4.8, and Sellers
shall defend, indemnify and hold Buyers harmless for any and all costs,
interest or penalties related to or arising out of such late filing in
accordance with Section 11.3(a) below.  All such Tax Returns were correct and
complete in all respects.  All Taxes owed
by or with respect to the Acquired Companies have been paid, and the Acquired
Companies are in compliance with all tax obligations.   The execution and consummation of this
Agreement will not give rise to any adverse Tax consequences for any of the
Buyers or the Acquired Companies such as, by way of illustration, a stamp tax
or transfer tax, except as such adverse tax consequences may be incurred due to
circumstances that are unique to Buyers and not generally imposed upon those in
the position of Buyers under these or similar circumstances.   For the avoidance of doubt, and subject to
the exception in the preceding sentence, Taxes imposed upon or resulting from
the transfer of shares of the Acquired Companies shall be borne by the Sellers,
regardless of whether, under Guatemalan law, the Sellers and the Buyers are
individually or jointly liable for such Taxes.


 


b)                                     (i) No written notice has been received
of any deficiencies for Taxes claimed, proposed or assessed by any Governmental
Authority with respect to the Acquired Companies; (ii) there are no
pending, current or Threatened audits, suits, proceedings, investigations,
claims or administrative proceedings for or relating to any liability in
respect of Taxes of the Acquired Companies; (iii) there are no outstanding
written agreements or waivers extending the statutory period of limitations
applicable to any Tax Returns required to be filed with respect to the Acquired
Companies, nor is there any written request for any such agreement or waiver
pending; and (iv) no written claim has been made by a Governmental
Authority in a jurisdiction where Tax Returns with respect to the Acquired Companies
are not filed that any Acquired Company is or may be subject to taxation in
such jurisdiction.


 


c)                                      With respect to any period for which Tax
Returns required to be filed by or with respect to the Acquired Companies have
not yet been filed and Taxes are not yet due and payable, each of the Acquired
Companies has made adequate accruals and reserves for such Taxes in accordance
with Guatemalan generally accepted accounting principles.


 


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d)                                     There are no Encumbrances for Taxes (other
than Permitted Encumbrances for which the respective Acquired Company has made
adequate accruals and reserves) on any of the assets of either of the Acquired
Companies or the Seller’s Shares.


 


e)                                      No Acquired Company is a party to any Tax
allocation or Tax sharing agreement pursuant to which it will have any
obligation to make any payments after the Closing, and no Acquired Company has
any liability for Taxes of any other Person as a transferee, successor, by
contract or otherwise.


 


f)                                        Each of the Acquired Companies has withheld
from amounts paid or owing to any employee, independent contractor, creditor,
stockholder or other party, and has paid over to the appropriate Governmental
Authority, all amounts required to be so withheld and paid over under
applicable Law.


 


g)                                     The taxable year of each Acquired Company
ends on December 31.


 


h)                                     None of the transactions between either of
the Acquired Companies and their Affiliates has been subject to any transfer
pricing adjustments by any Governmental Authority.  Each of the Acquired Companies and its
Affiliates has complied with all documentation requirements under the transfer
pricing Laws of the appropriate Governmental Authority.


 


Section 4.9             Real Property.  The
Acquired Companies do not own any interest in any real property except for the
sublease agreement set forth in Schedule 4.9. 
The sublease agreement set forth in Schedule 4.9 is free and clear of
all Encumbrances, except Permitted Encumbrances for which the respective
Acquired Company has made adequate accruals and reserves as well as the
limitations imposed by Guatemalan law on operations of a Free Trade Zone.  True, correct and complete copies of such
sublease agreement and the underlying prime lease have been provided to Buyers
or their representatives.  Except as
described in Schedule 4.9, neither of the Acquired Companies acts as a landlord
with respect to any lease, nor is any property included in the sublease
agreement detailed in Schedule 4.9 subject to any other lease, sublease,
license or other agreement granting to any other Person any rights to use or
occupy such real property; and there is no material real property that is
required for or used in the Business, except for the property leased under the
sublease agreement detailed in Schedule 4.9.


 


Section 4.10           Compliance with Law. Each of the Acquired Companies has complied
with all applicable laws including Export Control Laws and Requirements of Law
of any jurisdiction relating to money laundering and data protection, including
with respect to personal data, and each of the Acquired Companies, directly or
indirectly, maintains adequate governance and control processes to identify
noncompliance with any material Requirement of Law.


 


Section 4.11           Newly Formed; No Operation; No Contracts.  Each
of the Acquired Companies was organized on the date, and did not conduct any
business until the date, each as set forth on Schedule 4.11 and, but for the
sublease agreement set forth on Schedule 4.9, has not entered into a Contract
of any kind, except as set forth on Schedule 4.11.


 


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Section 4.12                             No Employees. 
Neither of the Acquired Companies has now, or ever had since the date of
its organization as a legal entity, any employees except as set forth in
Schedule 4.12.


 


Section 4.13                                Litigation and Compliance with Law. 
None of the Acquired Companies or the GE User is currently involved in a
civil, criminal, labor, tax-related, 
arbitration, administrative or other proceeding and no such claim has
been Threatened and no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such Proceeding.  There is no investigation by any Governmental
Authority pending or Threatened or any action, suit, proceeding, claim, charge,
arbitration or other litigation or administrative action Threatened against any
Acquired Company or GE User.  There is no
action, suit, proceeding, claim, arbitration or other litigation by any
Acquired Company or GE User pending or which any Acquired Company intends to
initiate, against any other Person.


 


Section 4.14                                Brokerage or Commissions. 
No Person is entitled to receive a success fee, finder’s fee, brokerage
or commission from or through the Sellers in connection with this Agreement,
the other Transaction Documents or the consummation of the Transactions
contemplated hereunder and thereunder nor are the Acquired Companies or the
Buyers liable to pay any sum whatsoever to any of the shareholders, directors,
employees, agents or advisers (past or present) of either Seller or either
Acquired Company in connection with the sale of any of the Purchased Shares or
otherwise in connection with this Agreement.


 


Section 4.15                                Net Investment Statement. 
Schedule 4.15 constitutes a net investment statement (“Net Investment
Statement”) setting forth (i) the actual cost paid by Sellers,
Administrator or GE User of all the assets of the Acquired Companies as well as
the assets to be transferred to the Acquired Companies in accordance with Section 7.5,
and (ii) the actual costs paid by Sellers, Administrator or GE User for
setting up the Acquired Companies and commencing the Business.  Such Net Investment Statement fairly presents
the true and accurate cost for all items listed therein all in accordance with
GAAP as of the Closing Date.


 


Section 4.16                                No Undisclosed Liabilities. 
Except as stated herein, neither Acquired Company has any liabilities or
obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent, or otherwise) except for liabilities or obligations
reflected or reserved against it in the Net Investment Statement delivered
under Section 4.15 .


 


Section 4.17                                Employee Benefit Plans; Employee Matters.


 


a)                                      Neither of the Acquired Companies has or
ever had any Employee Benefit Plan.


 


b)                                     No Employee Benefit Plan provides health,
medical or other welfare benefits after retirement or other termination of
employment (other than for continuation coverage required under applicable Law)
and no circumstances exist that could result in either of the Acquired
Companies or either Buyer becoming obligated to provide any such benefits,
except as otherwise provided herein.


 


c)                                      No current or former independent
contractor could be reclassified under applicable Law as an employee of either
of the Acquired Companies.


 


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d)                                     There are, and since the date of the
organization of each of the Acquired Companies and GE User have been, no
material strikes, organized work stoppages, organized slowdowns or lockouts
pending or, to the Knowledge of Seller, Threatened, involving any past or
current employee of the Acquired Companies or GE User.  None of the past or current employees of the
Acquired Companies or GE User are covered by a collective bargaining agreement
or other labor union Contract.  There are
no representation proceedings or written petitions seeking a representation
proceeding presently pending against any of the Sellers, the Acquired
Companies, GE User or any of their respective Affiliates involving any past or
current employee of the Acquired Companies. 
There is no unfair labor practice charge or complaint or other similar
proceeding pending or Threatened against any of the Acquired Companies or GE
User before any Governmental Authority.


 


e)                                      Neither the execution, delivery and
performance of this Agreement or the Related Agreements or the agreements
contemplated by the Transaction Documents, nor the consummation of the
transactions contemplated hereby and thereby (alone or in conjunction with any
other event, including any termination of employment on or following the
Closing), will (i) entitle any director or officer of any of the Acquired
Companies or GE User or any past or current employee of the Acquired Companies
or GE User to any compensation or benefit (whether of severance pay or
otherwise), (ii) accelerate the time of payment or vesting, or trigger any
payment, of any compensation or benefits or trigger any other obligation under
any Employee Benefit Plan or (iii) result in any breach or violation of,
default under or limit any of the Acquired Companies’ right to amend, modify or
terminate any Employee Benefit Plan.


 


f)                                        The terms of employment or engagement of
all directors, officers, current employees, independent contractors, agents,
consultants and professional advisers of each of the Acquired Companies or GE
User are such that their employment or engagement can be terminated, subject to
applicable Law, at any time by providing notice as required under the terms of
their respective employment or engagement and without liability for payment of
compensation or damages and there are no contractually agreed severance
payments which are or could become payable by either of the Acquired Companies
or by the Buyers to any directors, officers, current employees, independent
contractors, agents, consultants or professional advisers of either of the
Acquired Companies under the terms of any Contract or commitment or any Law,
custom, trade or practice.


 


Section 4.18                                No Material Adverse Change. Since the date of the Net Investment
Statement, there has not been (i) any material change in the costs set
forth in the Net Investment Statement and (ii) any material adverse change
in the business, operations, properties, prospects, assets, or condition of
either Acquired Company, and no event has occurred or circumstance exists that
may result in such a material adverse change.


 


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Section 4.19                                Certain Contracts


 


a)                                      Schedule 4.19 sets forth a list as of the
date of this Agreement, of all of the Contracts of each of the Acquired Companies,
including identification of which Acquired Company is bound by such Contract
(collectively, the “Applicable Contracts”). 
Within thirty (30) days of the Closing, Sellers will provide true and
complete copies of each of the Contracts listed in Schedule 4.19 together with
true and complete copies of all material Contracts to be transferred to one of
the Acquired Companies in accordance with Section 7.5.


 


b)                                     Each Applicable Contract is the legal,
valid and binding obligation of the relevant Acquired Company and of each other
party thereto, enforceable in accordance with its terms.  None of the Acquired Companies nor any other
party, is in violation or default of any term of any such Applicable Contract
and no condition or event exists which with the giving of notice or the passage
of time or both would constitute a violation or default by either of the
Acquired Companies or any other party thereto or permit the termination,
modification, cancellation or acceleration of performance of the obligations of
either Acquired Company or any other party to the Applicable Contract.


 


Section 4.20                                Intellectual Property


 


a)                                      Each of the Acquired Companies owns or
has a valid right to use, free and clear of all Encumbrances, all Intellectual
Property that it is currently using.


 


b)                                     There is no litigation pending or
Threatened, against either of the Acquired Companies that involves a claim (i) alleging
that the operation of the business infringes, misappropriates, dilutes or
otherwise violates a third party’s Intellectual Property rights or (ii) challenging
the ownership, use, validity, enforceability or registrability of any
Intellectual Property owned by either Seller or either of the Acquired
Companies.  The Business as currently
conducted does not infringe, misappropriate, dilute or otherwise violate any
third party’s Intellectual Property rights, including any such Rights under any
license agreements relating to commercially available Software.


 


c)                                      The Acquired Companies have not assigned
or granted any license of any kind relating to any Intellectual Property owned
by Seller, GE User or either of the Acquired Companies, or the marketing or
distribution thereof, to any third party, and necessary for the Business.  The Acquired Companies are not bound by or a
party to any option, license or similar Contract relating to the right to use
any Intellectual Property that they are using, other than Intellectual Property
that is generally commercially available. 
The Intellectual Property owned by Seller, the GE User or the Acquired
Companies that is in use in the Business does not contain any Open Source
Software.


 


d)                                     Upon Closing or upon transfer of the
Assets set forth in Section 7.5, each of the Buyers and each of the
Acquired Companies will have all necessary license rights to the Intellectual
Property (other than Trademarks) owned by Sellers or one of


 


13

















 


their Affiliates
that is used or will be used by the Acquired Companies in the Business as
conducted as of the date hereof or as contemplated in the Related Agreements.


 


Section 4.21                                Insurance.   Schedule 4.21
sets forth a true and complete list of all material insurance policies in force
with respect to the Business.  Copies of
such material insurance policies have been made available to Buyers.    Each of the Acquired Companies is (a) covered
by such types and amounts of insurance with respect to the Business as are
customarily carried by Persons engaged in the same or similar businesses as the
relevant Acquired Company, and (b) all insurance policies to which either
of the Acquired Companies is a party with respect to the Business are in full
force and effect and the relevant Acquired Company has paid all premiums due
and payable thereunder (other than retroactive or retrospective premium
adjustments that are not yet, but may be, required to be paid with respect to
any period ending prior to the Closing Date), and no written notice of
cancellation or termination has been received with respect to any such policy
which has not been replaced on substantially similar terms prior to the date of
such cancellation.  The Business has been
conducted in a manner so as to conform to all applicable provisions of such
insurance policies.


 


Section 4.22                                Environmental Matters.


 


a)                                     (i) The Business is being conducted
in compliance with all applicable Environmental Laws including all necessary
Environmental Permits except where failure to so comply would not reasonably be
expected to have a Material Adverse Change (or Effect) on either Acquired
Company or the Business; and (ii)  there are no administrative or judicial
proceedings pending or Threatened against any of the Acquired Companies or GE
User alleging a violation of or liability under Environmental Laws.


 


b)                                 There have been no Releases of Hazardous
Materials at, on or under any of the Leased Real Property by either Acquired
Company or GE User.  To the knowledge of
Sellers, there are no conditions, facts or circumstances that would reasonably
be expected to result in an Environmental Claim in connection with the
Business, either Acquired Company or the Facility in which each of the Acquired
Companies is or will be operating its Business in accordance with the
Transaction Documents.


 


c)                                  Buyer acknowledges that Sellers have
provided to Buyer the environmental reports and information relating to the
Leased Real Property that are identified and described in Schedule 4.22(c) (“Environmental
Reports”), which are all the environmental reports relating to the Leased Real
Property that Sellers have in their possession or are aware exist.  Buyer acknowledges that Seller has provided
the Environmental Reports as a convenience to Buyer and that Buyer is not
entitled to rely upon the Environmental Reports.  Sellers do not and shall not make any
representation or warranty whatsoever as to the accuracy or completeness of the
information contained in the Environmental Reports.


 


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d)                                 The representations and warranties made
by the Sellers in this Section 4.22 are the only representations and
warranties in this Agreement regarding any matters arising under or regulated
pursuant to any Environmental Laws or Environmental Permit.


 


Section 4.23                                Prohibited Payments. 
None of the Acquired Companies or GE User and, to the extent in
connection with the Acquired Companies, GE User, the BAC MOU, the Facility,
none of the Sellers, Sellers’ other Affiliates or any agent or other Person
acting on behalf of either of the Acquired Companies,  the Sellers, the Sellers’ Affiliates or the
GE User, has, in violation of any provision of either of the U.S. Foreign
Corrupt Practices Act of 1977, the Inter-American Convention Against Corruption
and legislation implementing such Convention, the Organization for Economic
Co-operation and Development Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions and legislation implementing
such Convention, or any Law relating to prohibited payments to any government
officials or employees, as amended, (a) used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity or (b) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds or (c) improperly
recorded any funds.  None of the Acquired
Companies or GE User and, to the extent in connection with the Acquired
Companies, GE User, the BAC MOU, the Facility, none of the Sellers, Sellers’
other Affiliates or any agent or other Person acting on behalf of either of the
Acquired Companies,  the Sellers, the
Sellers’ Affiliates or the GE User, has received any written or oral notice or
other warning from any Governmental Authority that alleges that any Acquired
Company or any agent or another Person acting on behalf of any Acquired Company
is not, or may not be, in compliance with, or has, or may have, any liability
under, the Foreign Corrupt Practices Act of 1977, as amended.


 


Section 4.24                                Disclosure.  No
representation or warranty of Sellers in this Agreement or in the other
Transaction Documents omits to state a material fact necessary to make the
statements herein or therein not misleading.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


In order to induce
the Sellers to enter into this Agreement and to consummate the transactions
contemplated hereby, the Buyers, jointly and severally, make the following representations and
warranties to the Sellers, each of which is true and correct as of the
Effective Date and the Closing Date and shall be unaffected by any
investigation heretofore or hereafter made by the Sellers.


 


Section 5.1                                      Right, Power, Authority and Action. 
Each of the Buyers has the requisite right, power and authority, and has
taken all action necessary, to execute, deliver and exercise its rights and
perform its obligations under this Agreement and each Transaction Document. The
execution, delivery and performance by each of the Buyers of this Agreement and
each Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action on the part


 


15

















 


of the relevant Buyer.  This Agreement and each Transaction Document
to which each Buyer is a party is, or upon its execution and delivery will be,
a valid and binding obligation of the relevant Buyer, enforceable against it in
accordance with its terms.


 


Section 5.2                                      No Conflict. 
The execution and delivery of and performance by each of the Buyers of
this Agreement and the Transaction Documents do not:


 


a)                                      conflict with any provision of the bylaws
of such Buyer;


 


b)                                     conflict with, or result in any violation
of, or constitute a default (with or without notice or lapse of time, or both)
under any Contract to which such Buyer is a party or by which any of its
properties is bound;


 


c)                                      result in a breach of any order, judgment
or decree of any court or governmental agency to which such Buyer is a party or
by which such Buyer is bound or submits;


 


d)                                     result in the creation of an Encumbrance
upon any of the assets of the Buyers; or


 


e)                                      require the Buyers to obtain any consent
or approval of, or give any notice to or make any registration with, any third
party or governmental or other authority which has not been obtained or made as
of the date hereof.


 


Section 5.3                                      Consents and Approvals. 
No filing with, and no permit, authorization, consent or approval of any
Government Authority or any other Person is necessary for the consummation by
either of the Buyers of the transactions contemplated hereby and in the
Transaction Documents.


 


Section 5.4                                      Brokers. The Buyers have not employed any broker or finder and
has not incurred and will not incur any broker’s, finder’s or similar fees,
commissions or expenses payable by the Sellers or the Acquired Companies in
connection with the transactions contemplated by this Agreement (other than
those paid or payable solely by the Buyers).


 


Section 5.5                                      Financial Capacity; Solvency. 
The Buyers have sufficient cash and commitments for financing in an
aggregate amount sufficient to pay all of the consideration payable to the
Sellers as required by this Agreement, and to make all other necessary payments
in connection with the purchase of the Purchased Shares and to pay all related
fees and expenses to be paid by the Buyers. 
Immediately after giving effect to the transactions contemplated hereby,
each of the Buyers will not (i) be insolvent (either because its financial
condition is such that the sum of its debts is greater than the fair value of
its assets or because the fair salable value of its assets is less than the
amount required to pay its probable liability on its existing debts as they mature),
(ii) have unreasonably insufficient capital with which to engage in its
business, or (iii) have incurred debts beyond its ability to pay as they
become due.


 


Section 5.6                                      Litigation. 
There are no actions, suits, claims or proceedings pending or, to the
knowledge of the Buyers, threatened against or involving the Buyers or any of
its assets or properties by or before any Authority that question the validity
of this Agreement or seek to prohibit, enjoin or otherwise challenge the
consummation of the transactions contemplated


 


16

















 


hereby.  There are no outstanding
orders, judgments, injunctions, stipulations, awards or decrees of any
Governmental Authority against the Buyers or any of their assets or properties
which prohibit or enjoin the consummation of the transactions contemplated
hereby.


 


Section 5.7                                      Information.  The Buyers have conducted some preliminary investigation,
review and analysis of the business, operations, assets, liabilities, results
of operations, financial condition and prospects of the Acquired Companies in
large part based upon the information provided to Buyers by Sellers.


 


ARTICLE
VI

CONDUCT OF BUSINESS PENDING THE CLOSING


 


Section 6.1                                      Conduct of Business by the Sellers
Pending the Closing.  The Sellers, jointly and severally, covenant
and agree that, except as otherwise expressly required or permitted by the
terms of this Agreement, or except as expressly approved or directed by the
Buyers, between the date of this Agreement and the Closing Date, each of the
Sellers shall use its reasonable best efforts to cause each of the Acquired
Companies and GE User to operate in the ordinary course of business and each of
the Sellers shall cause each of the Acquired Companies and GE User not to change
its operations or policies. The Sellers shall use their reasonable best efforts
to cause each of the Acquired Companies and GE User to preserve intact its
business organization, keep available the services of its current officers,
employees and consultants, and preserve its present relationships with
customers, suppliers and other persons with which it has significant business
relations.  By way of amplification and
not limitation, the Sellers shall not, between the date of this Agreement and
the Closing Date, except as otherwise provided in Section 7.5, directly or
indirectly, propose or agree, or cause any of the following with regard to
either of the Acquired Companies, without the prior written consent of Buyers
to:


 


a)                                  amend or otherwise change its memorandum
or articles of incorporation or association or the bylaws or equivalent
organizational documents, except the change of name of the Administrator to
Genpact Administraciones-Guatemala, S.A., which change is expressly agreed in
this Agreement and will be completed by Sellers as soon as practicable but no
later than September 30th, and if Closing takes place before
the change of name is completed, the Buyers shall cause the Administrator to
complete the change of name process;


 


b)                                 adopt a plan or agreement of liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization;


 


c)                                  issue, sell, pledge, dispose of,
encumber, or, authorize the issuance, sale, pledge, disposition, grant or
encumbrance of (i) any shares or capital stock of any class, or any
options, warrants, convertible securities or other rights of any kind to
acquire


 


17

















 


any shares or capital stock, or any other ownership interest, of it or (ii) any
of its assets, tangible or intangible;


 


d)                                 declare, set aside, make or pay any
dividend or other distribution, payable in cash, stock, shares, property or
otherwise, with respect to any of its shares or capital stock;


 


e)                                  reclassify, combine, split, subdivide or
redeem, purchase or otherwise acquire, directly or indirectly, any of its
shares or capital stock;


 


f)                                    permit either of the Acquired Companies
to (i) acquire (including, without limitation, for cash or shares of
stock, by merger, consolidation or acquisition of stock, shares or assets) any
interest in any corporation, partnership, limited liability company or other
business organization or division thereof or any assets, or make any investment
either by purchase of stock, shares or securities, contributions of capital or
property transfer, or, except in the ordinary course of business purchase any
property or assets of any other Person, (ii) incur any indebtedness for
borrowed money or issue any debt securities or assume, guarantee or endorse or
otherwise as an accommodation become responsible for, the obligations of any
Person, or make any loans or advances, (iii) sell, dispose of or encumber
any of its assets, tangible or intangible, or (iv) enter into any Contract
other than in the ordinary course of business or necessary for its business;


 


g)                                 enter into any Contract relating to the
Business, other than such Contracts that are entered into in the ordinary
course of business or such Contracts that are expressly described in the other
Transaction Documents, on terms and conditions acceptable to Buyers in their
sole discretion;


 


h)                                 Modify, amend or terminate any Contract
currently in force or to be entered into as expressly described in the other
Transaction Documents except in the ordinary course of business;


 


i)                                     make any capital expenditures, or
commitments for such capital expenditures except in an amount less then $10,000
(ten thousand dollars) in each individual case or less than $50,000 (fifty
thousand dollars) in the aggregate;


 


j)                                     make any loans or advances of borrowed
money or capital contributions to, or equity investments in, any other Person,
other than extensions of trade credit in the ordinary course of business;


 


k)                                  increase the compensation payable or to
become payable to its officers or employees, or, except as presently bound to
do, grant any severance or termination pay to, or enter into any employment or
severance agreement with, any of its directors, officers or other employees, or
establish, adopt, enter into or amend or take any action to accelerate any
rights or benefits which any collective bargaining, bonus, profit sharing,
trust, compensation, stock option, restricted 


 


18

















 


stock, pension, retirement, deferred compensation, employment,
termination, severance or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any directors, officers or employees;


 


l)                                     other than in the ordinary course of
business, hire or terminate any employee of either of the Acquired Companies;


 


m)                               take any action with respect to
accounting policies or procedures other than in the ordinary course of
business;


 


n)                                 (i) make or change any material Tax
election or position, (ii) amend any material Tax Return, (iii) enter
into any closing agreement with a Governmental Authority, (iv) waive or
extend any statute of limitations with respect to Taxes, (v) settle or
compromise any material Tax liability, claim or assessment or surrender any
right to claim a refund of material Taxes;


 


o)                                 acquire (by merger, consolidation,
acquisition of stock or assets or otherwise) any corporation, partnership or
other business organization or assets comprising a business or any material
amount of property or assets in or of any other Person;


 


p)                                 dispose, transfer or lease any property
or assets;


 


q)                                 release any rights or claims in respect
of the Business;


 


r)                                    pay, discharge or satisfy any existing
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction in
the ordinary course of business of due and payable liabilities reflected or
reserved against in its financial statements, as appropriate, or liabilities
incurred after the date thereof in the ordinary course of business except as
provided for in Section 7.3 of this Agreement; or


 


s)                                  agree, in writing or otherwise, to take
or authorize any of the foregoing actions or any action which would make any
representation or warranty in Article VI untrue or incorrect.


 


Section 6.2                                      Access.


 


a)                                  From the date hereof to the Closing,
subject to any applicable Requirement of Law, Sellers will permit Buyers and
their representatives to have reasonable access, during regular business hours
and upon reasonable advance notice, to the Acquired Companies’ and GE User’s
properties, premises, facilities, information technology systems, employees and
representatives and books and records to the extent related to the transactions
contemplated by this Agreement and the Related Agreements, provided that such
access is reasonably necessary for Buyers to complete the transactions
contemplated by this Agreement or to conduct the Business as contemplated by
this Agreement; and provided, further, that Buyers


 


19

















 


shall not be
entitled to access to any confidential information respecting Sellers’ or its
Affiliates’ clients, any information subject to confidentiality duties to third
parties, whether by law or agreement.  To
the extent any information reasonably requested by Buyers is unavailable as the
result of the foregoing proviso, then the Parties shall cooperate to provide
alternative information or comfort to Buyer respecting such information.  Each Seller shall direct its and the Acquired
Companies’ respective employees, agents and representatives and shall cause the
employees, agents and representatives of its applicable Affiliates, to
cooperate reasonably with Buyer and its representatives.  Without limiting the foregoing, from the date
hereof until the Closing Date, Buyers shall not conduct, without the prior
written consent of the Sellers, any environmental investigation at the Leased
Real Property, and in no event may any environmental investigation include any
sampling or other intrusive investigation of air, surface water, ground water,
soil or anything else at or in connection with any Real Property, except as may
be required by the Sublease.


 


b)                                 Following the Closing, subject to any
applicable Requirement of Law, Sellers will permit Buyers and their Affiliates
and their respective representatives and advisors (including attorneys and
accountants), and Buyers will permit Sellers and their Affiliates and their
respective representatives and advisors (including attorneys and accountants)
to have reasonable access (including to examine and make copies of, as
applicable), during regular business hours and upon reasonable advance notice,
to any books and records and personnel relating to the Business or either of
the Acquired Companies or GE User which were retained by either of Sellers or
their Affiliates where the requesting entity is a Buyer or Affiliate of Buyer,
or held by a Buyer or an Affiliate of Buyer where the requesting entity is a
Seller or Affiliate of Seller, as well as to each of the Acquired Companies’
corporate records, for any reasonable purpose relating to the Business,
including in connection with (i) the preparation of the Revised Net
Investment Statement and any dispute in connection therewith, (ii) the
preparation of Buyer’s accounting records or audits, (iii) any suit,
claim, action, proceeding or investigation relating to or referring to the
Business or each of the Acquired Companies in any manner (whether or not either
Acquired Company is a party to such suit, claim, action, proceeding or
investigation), (iv) any regulatory filing or matter or (v) any other
bona fide legal or business purpose of Buyer; provided, however, that Buyers
shall not be entitled to access to any confidential information respecting
Sellers’ or its Affiliates’ clients, any information subject to confidentiality
duties to third parties, whether by law or agreement.  To the extent any information reasonably
requested by Buyers is unavailable as the result of the foregoing proviso, then
the Parties shall cooperate to provide alternative information or comfort to
Buyer respecting such information.


 


c)                                  Following the Closing, the Parties shall,
upon written request, use reasonable efforts promptly to make available to each
other, their and their Affiliates’ respective representatives (including legal
counsel) for fact finding, consultation


 


20

















 


and interviews and
as witnesses or other participants to the extent that any such Person may
reasonably be required in connection with any action, suit, proceeding, claim,
arbitration, litigation, or formal or informal regulatory proceeding or
inquiry, in which the requesting party may from time to time be involved
relating to or referring in any manner to the Business, either Acquired Company
(whether or not such Acquired Company is a party to such matter) as such
businesses were conducted prior to the Closing (and the Parties will cause such
representatives to cooperate with the requesting party to produce (and provide
copies or extracts thereof), subject to and in accordance with this Section,
such books and records (including corporate and related records) as are
reasonably required in connection with such matters).  Except as otherwise agreed between the
Parties, the Parties agree to reimburse each other for reasonable out-of-pocket
expenses incurred by the other in connection with providing individuals,
witnesses and/or books and records pursuant to this Section.


 


d)                                 Until the Closing, the Parties promptly
shall notify each other in writing of any fact, change, condition, circumstance
or occurrence or nonoccurrence of any event of which it is aware that will or
is reasonably likely to result in any of the conditions becoming incapable of
being satisfied or that will or is reasonably likely to result in a claim for
indemnification.


 


e)                                  Nothing in this Contract limits GE User
and BAC’s ability and rights to use and have access to the areas subleased or
to be subleased to them or to be allocated to them under other contractual
arrangements in accordance with the terms thereof.


 


ARTICLE VII

COVENANTS


 


Section 7.1                                      Due Diligence Review. 
In order to accommodate the Sellers’ desired Closing Date, the Buyers
have been unable to complete a full due diligence review of the assets,
properties, books and records of the Acquired Companies.  The Sellers shall provide the Buyers and/or
their designated agents or consultants with the access to such property which
Buyers, their agents or consultants require to conduct the due diligence review
to the extent feasible prior to the Closing Date.


 


Section 7.2                                      Confidentiality.


 


a)                                  Subject to Section 10.2, each Seller
undertakes to the Buyers, for itself and as agents and trustees of the Acquired
Companies, and each Buyer undertakes to the Sellers, that it shall treat as
confidential all proprietary or confidential information and any other
information received or obtained as a result of entering into or performing
this Agreement which relates to:


 


i.                                            the other party and its business
including, where that other party is the Seller, the Acquired Companies prior
to the Closing Date;


 


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ii.                                           the
provisions or the subject matter of this Agreement or any other Transaction
Document and any claim or potential claim thereunder; or


 


iii.                                        the
negotiations relating to this Agreement and the Transaction Documents.


 


b)                                 Section 7.2(a) does
not apply to disclosure of any such information:


 


i.                                              which
is required to be disclosed by law, by a rule of a listing authority or
stock exchange to which any party or an Affiliate of such party is subject or
submits or by a governmental authority or other authority with relevant powers
to which any party or an Affiliate of such party is subject or submits, whether
or not the requirement has the force of law provided that the disclosure shall
be disclosed to the other party in writing;


 


ii.                                           to
an adviser for the purposes of advising in connection with the Transactions
contemplated by this Agreement provided that such disclosure is reasonably
necessary for these purposes and provided disclosure is on the basis of a
confidentiality undertaking of similar content to this section;


 


iii.                                        to
a director, officer or employee of the Buyers or their Affiliate or the
Acquired Companies whose function requires him or her to have the relevant
confidential information;


 


iv.                                       to
the extent that the information has been made public by, or with the consent
of, the other party;


 


v.                                          to
the extent necessary to perform any obligations under this Agreement or any
contractual obligation referring to the activities of the Acquired Companies;
or


 


vi.                                       to
a party’s investors or providers of debt provided disclosure is on the basis of
a confidentiality undertaking of similar content to this section.


 


Section 7.3                                      Indebtedness.  At or prior to the Closing, Sellers shall
cause the Acquired Companies to (i) indefeasibly pay and discharge (or
otherwise extinguish and release) in full, any and all outstanding Indebtedness
of each of the Acquired Companies (including any interest thereon and any
prepayment penalties or fees, premiums, breakage amounts or other amounts
payable in connection with payment and discharge thereof) such that, as of the
Closing, each of the Acquired Companies will not have any Indebtedness, and (ii) release
all Encumbrances in connection with any such outstanding Indebtedness,
including pursuant to intra-group credit arrangements with Sellers or their
Affiliates, if any.


 


Section 7.4                                      Insurance.  At the Closing, all policies for insurance
listed in Schedule 4.21 covering each of the Acquired Companies shall be fully
paid through and including the date of


 


22

















 


the Closing, be in full force and effect and shall be eligible to be
maintained for at least a period of one year by the Buyers upon the payment of
premiums for such period of time.


 


Section 7.5                                      Transfers.  All of the Assets reflected in Schedule
4.15  that are not owned by the
respective Acquired Company at Closing shall be transferred within thirty (30)
days after Closing to the respective Acquired Company, on a tax free basis, and
without cost or obligation of such Acquired Company, except in the case of
material Contracts (as assets) where such transfer is expressly prohibited by a
GE Corporate Contract, a Contract that may be terminated due to change of
control provisions or a Contract as agreed by the Parties, all of which are
listed on Schedule 7.6, in which case the Parties shall adjust the Purchase
Price in accordance with Section 2.4.


 


Section 7.6                                      Sufficiency
of Assets.


 


a)                                     Upon
completion of the transfers contemplated by Section 7.5 above, each of the
Acquired Companies will own, possess, license, lease, have control of or have
rights to use in accordance with the same contractual terms as are applicable
on the date of this Agreement which shall be the same terms applicable at the
time of transfer unless expressly agreed otherwise in this Agreement, all
material assets (including material Contracts and Intellectual Property)
necessary to conduct the Business as the same is contemplated to be conducted
in accordance with this Agreement, the Related Agreements and the Transaction
Documents, except for GE Corporate Contracts, such Contracts that may be
terminated due to change of control provisions or such Contracts as are agreed
by the Parties, all of which are listed on Schedule 7.6 to the Share Purchase
Agreement.


 


b)                                    Upon
completion of the transfers contemplated by Section 7.5 above, the
equipment, software and technology used by each of the Acquired Companies to
provide the Existing Services (to be defined in the SOW contemplated by the
Omnibus Agreement), and which the Acquired Companies will have the right to use
on the same contractual terms as are applicable prior to the date of this
Agreement which shall be the same terms applicable at Closing and thereafter as
contemplated by the Omnibus Agreement, unless expressly agreed otherwise in
this Agreement will be capable of providing the Existing Services at the
Service Levels (to be defined in the Statement of Work contemplated by the
Omnibus Agreement) and thereafter as contemplated by the Omnibus Agreement
unless expressly agreed otherwise in this Agreement, except for GE Corporate
Contracts, such Contracts that may be terminated due to change of control
provisions or such Contracts as are agreed by the Parties, all of which are
listed on Schedule 7.6 to the Share Purchase Agreement.


 


Section 7.7                                      Intellectual
Property Licenses.


 


a)                                  At the Closing, Sellers shall, or
shall cause their Affiliates to, grant to Buyers and their Affiliates
(including the Acquired Companies) a perpetual, irrevocable, royalty-free,
worldwide, sub-licensable (solely to the extent necessary for the


 


23

















 


Buyers and their
Affiliates (including Acquired Companies’) customers to receive services and
use products, in each case, provided by Buyers and their Affiliates),
non-exclusive, non-transferable (in whole or in part, except to an Affiliate of
any Acquired Company or in connection with a merger, sale, transfer or other
disposition of all or substantially all of the Acquired Companies’ business or
assets) license to use, distribute, display, copy, sell, offer for sale, modify
and/or create derivative works from all Intellectual Property (other than
Trademarks) owned by Sellers or one of their Affiliates that is used by the
Acquired Companies in the Business as conducted as of the date hereof, (the “Licensed
Sellers Intellectual Property”).  Buyers
and their Affiliates (including the Acquired Companies) shall own the new
incremental portion of any derivative works based on the Licensed Sellers
Intellectual Property created by Buyers or their Affiliates (including the
Acquired Companies) following the Closing (for the avoidance of doubt, Buyers
and their Affiliates (including the Acquired Companies) shall not own the
underlying Licensed Seller Intellectual Property or the derivative work as a
whole).


 


b)                                 In connection with the licenses
granted in this Section, upon a licensee’s reasonable request, each licensor
shall promptly deliver to such licensee all Intellectual Property licensed to
such licensee under this Section, including copies of all process descriptions,
source code, related object libraries, compiler and build command files and
other existing documentation relating thereto, which shall be treated as
Confidential Information.


 


Section 7.8                                      Correspondence.  From and after the Closing and for a period
of sixty (60) calendar days after the Closing, (a) Sellers shall use
reasonable efforts to cause to be delivered to either Acquired Company any mail
or other communications received by Sellers or their Affiliates intended for
either Acquired Company and (b) Buyers shall use reasonable efforts to
cause to be delivered to either Seller any mail or other communications
received by either Acquired Company or its Affiliates intended for either
Seller or its Affiliates.


 


Section 7.9                                      Financial Records and Audit
Cooperation.


 


a)                                     From and after the date hereof and
until the Closing Date, Sellers shall use their reasonable efforts to cause the
Acquired Companies to maintain the financial records of the Acquired Companies
and to continue to prepare financial statements in accordance with, and in a
manner and on the timing consistent with, the accounting principles,
procedures, policies, practices and methods used prior to the date hereof,
including the application of GAAP, as applicable.  Sellers shall, prior to and, for a period of
twelve (12) months after the Closing, (i) use reasonable efforts to
cooperate in good faith with Buyers and their independent accountants as
reasonably requested by Buyers in connection with Buyers’ preparation and audit
of GAAP and statutory consolidated financial statements of the Acquired
Companies (including income statements, balance sheets, statements of cash
flows and statements of stockholders’ equity) for the most recently completed
interim period (as of the Closing Date) as well as the corresponding 


 


24

















 


interim period in the
previous year, if applicable; and (ii) use reasonable efforts to cause the
Sellers’ independent accountants to provide customary assistance with respect
thereto as reasonably requested by Buyers.


 


b)                                    Sellers
shall, prior to and for a period of twelve (12) months after the Closing, in
relation to any filing required by Buyers or their Affiliates with the SEC in
which Buyers are required to include financial statements or other financial
information of the Acquired Companies, which relate in whole or in part to any
period prior to Closing, or pro forma financial statements or information
showing the effects of the transactions contemplated by this Agreement,
including any registration statement or prospectus relating to an offering of
securities, (i) permit Buyers and their representatives to have reasonable
access, during regular business hours and upon reasonable advance notice, to
such information and records (to the extent retained by Sellers or their
respective Affiliates, if such access is to be provided after the Closing) as
are reasonably necessary for the production of such information in connection
with such filings, (ii) use reasonable efforts to cooperate in good faith
with Buyers and their independent registered public accounting firm in
connection with the preparation of such financial statements or financial
information and (iii) use reasonable efforts to cause the Sellers’
independent accountants to provide customary assistance with respect thereto,
including the provision of consents for the use of their reports in such
filings and customary comfort letters.


 


Section 7.10.                             Financial
Statements.


 


a)                                      Within
thirty (30) calendar days of Closing, Sellers will deliver to Buyer unaudited
balance sheets for each of the Acquired Companies as at June 27, 2008, and
the related unaudited statements of income, changes in stockholders’ equity,
and cash flow, including the notes thereto. Such financial statements and notes
will fairly present the financial condition and the results of operations,
changes in stockholders’ equity, and cash flow of each of the Acquired
Companies as at the respective dates of and for the periods referred to in such
financial statements, all in accordance with GAAP.


 


b)                                     Within one hundred
and twenty (120) calendar days of Closing, Sellers will deliver to Buyers
statutory financial statements for the Acquired Companies in accordance with
Guatemalan generally accepted accounting principles. Such financial statements
and notes will fairly present the financial condition and the results of
operations, changes in stockholders’ equity, and cash flow of each of the
Acquired Companies as at the respective dates of and for the periods referred
to in such financial statements, all in accordance with Guatemalan generally
accepted accounting principles.


 


25

















 


Section 7.11.                          Employee Matters.


 


a)                                  Employment
of All Business Employees.


 


i.                                              Continuation
of Employment.  As of a date to be
agreed by the Parties, but in the case of any employee of GE User to be
transferred to Genpact User or the Administrator, no earlier than three months
after any such employee of GE User commenced employment (a “Transfer Date”),
the Buyers shall offer, or cause one of the Acquired Companies to offer,
comparable employment as of the Transfer Date as a successor employer to those
employees of the GE User or its Affiliates as may be agreed by the Parties
(each of the individuals described above is referred to as a “Business Employee”)
and who is actively employed (including individuals on vacation, holiday, jury
duty, short term sick leave, disability or other similar absence) immediately
prior to the Transfer Date.   The
Business Employees who accept an employment offer from one of the Acquired
Companies as of the Transfer Date are referred to as the “Transferred Employees”,
and the Acquired Company which becomes the employer of a Transferred Employee
is referred to as the “Successor Employer”. Neither the Buyers nor Successor
Employer shall be obligated, however, to continue to employ any Transferred
Employee for any specific period of time following the Transfer Date, subject
to applicable Law.


 


ii.                                           Terms
and Conditions of Employment.  For a
period of at least one year following the Transfer Date, each Transferred
Employee shall be entitled to receive while in the employ of the Successor
Employer at least the same salary, wages, incentive compensation, bonus
opportunities, and other terms and conditions of employment as were provided to
such employee immediately prior to the Transfer Date.  In addition, for a period of at least one
year following the Transfer Date, the Successor Employer shall provide the
Transferred Employees with substantially equivalent employee benefits
(including life insurance and medical benefits) having a comparable aggregate
value to all benefits provided to such employee under the Employee Benefit
Plans as set forth in Schedule 7.11(a)  in effect immediately prior to the
Transfer Date; provided that for purposes of this covenant, stock options and
other equity awards shall be disregarded.


 


iii.                                        Bonuses.  As of the Transfer Date, the Successor
Employer shall assume all obligations to each Transferred Employee to pay any
bonuses required by Guatemalan law or incentive payments agreed to by Seller
described in Schedule 7.11(a) as of the Transfer Date.  Consistent with the Buyers’ obligations under
this Section 7.11(a) , the Successor Employer shall pay Transferred
Employees annual incentive compensation on the same basis as in effect prior to
the Transfer Date.


 


iv.                                       Individual
Employee Agreements.  As of the
Transfer Date, the Successor Employer shall assume all obligations of Sellers
and its Affiliates under all individual employment, retention, termination,
severance and other


 


26

















 


similar agreements set forth in Schedule
7.11(a)(iv)  (collectively, “Employee Agreements”) pursuant to which
Sellers or any of its Affiliates has any obligation, contingent or otherwise to
any of the Transferred Employees.


 


v.                                          Credit
for Service.  The Successor Employer
shall credit Transferred Employees for service earned on and prior to the
Transfer Date with Sellers and their Affiliates, or any of their respective
predecessors, in addition to service earned with the Successor Employer on or
after the Transfer Date, (i) to the extent that service is relevant for
purposes of eligibility, vesting or the calculation of vacation, sick days,
severance, layoff and similar benefits under any retirement or other employee
benefit plan, program or arrangement of the Successor Employer for the benefit
of the Transferred Employees on or after the Transfer Date and (ii) for
such additional purposes as may be required by applicable Law.


 


vi.                                       Pre-existing
Conditions; Coordination.  The
Successor Employer shall waive limitations on benefits relating to any
pre-existing conditions of the Transferred Employees and their eligible
dependents.  The Successor Employer shall
recognize for purposes of annual deductible and out-of-pocket limits under its
health plans applicable to Transferred Employees, deductible and out-of-pocket
expenses paid by Transferred Employees and their respective dependents under
Sellers’ or any of their Affiliates’ health plans in the calendar year in which
the Transfer Date occurs.


 


b)                                 Transferred
Employees.


 


i.                                              Terms
and Conditions of Employment.  The
Successor Employer shall, in addition to meeting the requirements of Section 7.11(a),
comply with any additional obligations or standards arising under applicable
Laws governing the terms and conditions of Transferred Employees’ employment or
severance of employment in connection with the transfer of the Business or
otherwise.


 


ii.                                           Severance
Indemnity.  In the event the
Successor Employer, with respect to any Transferred Employee, (i) does not
provide a mirror benefit plan that is identical to the substantive provisions
that are in effect as of the Transfer Date under each Employee Benefit Plan (as
defined below) in which such Transferred Employee was covered or eligible for
coverage immediately prior to the Transfer Date, (ii) amends or otherwise
modifies on or after the Transfer Date any such mirror benefit plan, or other
term or condition of employment applicable to such Transferred Employee
immediately prior to the Transfer Date, or (iii) fails to continue an
offer of employment with the Successor Employer, in each case in a manner that
results in any obligation, contingent or otherwise, of Sellers or their
Affiliates to pay any severance or other benefit (including such benefits


 


27

















 


required under applicable Laws) to any
Transferred Employee and any additional liability incurred by Sellers and their
Affiliates in connection therewith, the Buyers shall, and shall cause their
Affiliates to, reimburse and otherwise hold harmless Sellers and their
Affiliates for all such severance and other benefits.


 


c)                                  Parent
Plans.


 


i.                                              No
Assumption or Transfer of Parent Plans. 
Except as otherwise specifically provided in the Agreement, the Buyers
and their Affiliates shall not assume any obligations under or liabilities with
respect to, or receive any right or interest in any trusts relating to, any
assets of or any insurance, administration or other contracts pertaining to any
of the Employee Plans which are sponsored or maintained by GE or its Affiliates
(“Parent Plan”) principally for GE employees.


 


d)                                 Employee
Benefit Plans.


 


i.                                              The
Successor Employer shall put in place Employee Benefit Plans set forth in
Schedule 7.11(a).


 


ii.                                           The
Employee Benefit Plans set forth in Schedule 7.11(a) shall be continued
for a period of at least one year following the Transfer Date or such longer
period as may be required under applicable Law or practice.


 


e)                                  Impermissibility;
Good Faith.


 


i.                                              In
the event that any provision hereof is not permissible under any Law or
practice, the parties agree that they shall in good faith take such actions as
are permissible under such Law or practice to carry out to the fullest extent
possible the purposes of such provision.


 


f)                                    Employee
Data Protection.


 


i.                                              “Sellers’
Personal Data” includes any information relating to an identified or
identifiable natural person that (i) is obtained by the Buyers from
Sellers or any of their Affiliates or representatives, (ii) is processed
by the Buyers on behalf of Sellers, (iii) pertains to Sellers’ personnel,
or (iv) is created by the Buyers based on (i), (ii), or (iii) above.


 


ii.                                           The
Buyers shall, and shall cause their Affiliates to, comply with all applicable
Laws regarding the maintenance, use, sharing or processing of Sellers’ Personal
Data, including, but not limited to (i) compliance with any applicable
requirements to provide notice to, or obtain consent from, the data subject for
processing of the data after the Transfer Date, and (ii) taking any other
steps necessary to ensure compliance with local data


 


28

















 


protection Laws, including but not limited
to, the execution of any separate agreements with Sellers to facilitate the
lawful processing of certain Sellers’ Personal Data (such agreements to be
executed before or after the Transfer Date, as necessary).


 


iii.                                        The
Buyers shall, and shall cause their Affiliates to, share and otherwise process
Sellers’ Personal Data only on a need-to-know basis, only as legally permitted
and to the extent necessary to perform its obligations under the Transaction
Agreements or Sellers’ further written instructions.  The Buyers shall use reasonable, technical
and organizational measures to ensure the security and confidentiality of
Sellers’ Personal Data in order to prevent, among other things, accidental,
unauthorized or unlawful destruction, modification, disclosure, access or
loss.  The Buyers agree that, before the
Transfer Date, it shall not disclose any Sellers’ Personal Data to third
parties without the express written approval of Sellers or unless required by
applicable Law.  The Buyers shall
immediately inform Sellers of any breach of this security and confidentiality
undertaking, unless prohibited from doing so by Law.


 


g)                                 Cooperation
and Assistance.


 


i.                                              Cooperation
of the Buyers.  After the Transfer
Date, the Buyers shall, and shall cause their Affiliates to, cooperate with
Sellers to provide such current information regarding the Transferred Employees
or former employees of the Business on an ongoing basis as may be reasonably
necessary to facilitate determinations of eligibility for, and payments of
benefits to, the Transferred Employees under the Parent Plans as applicable.


 


ii.                                           Claims
Assistance.  The Buyers shall, and
shall cause their Affiliates to, permit Transferred Employees to provide such
assistance to the Sellers at Sellers’ expense as may be required in respect of
claims against the Sellers or its Affiliates, whether asserted or threatened,
to the extent that the Parties agree that (a) a Transferred Employee has
knowledge of relevant facts or issues, or (b) a Transferred Employee’s
assistance is reasonably necessary in respect of any such claim.


 


iii.                                        Term.  The cooperation and assistance provided for
in this Section shall survive the Closing for a period of eighteen months.


 


Section 7.12.                           GE
Capital Sublease Guaranty.  Within 60
days after the Closing Date, Genpact Limited shall use its best efforts to
arrange, within 60 days after the Closing Date, to cancel or assume GE Capital’s
guaranty of the Administrator’s obligations under the Sublease, but in any
event, shall indemnify GE Capital for such guaranty obligations as provided in Section 13.3(c) hereof.


 


29

















 


ARTICLE VIII

CONDITIONS TO THE OBLIGATIONS OF BUYER


 


Section 8.1                                      Conditions.  The obligations of the Buyers to effect the
Transactions contemplated hereby shall be subject to the fulfillment at or
prior to the Closing Date of the following conditions, any or all of which may
be waived in whole or in part in writing by Buyer:


 


a)                                   Accuracy
of Representations and Warranties and Compliance with Obligations.  The representations and warranties of each of
the Sellers contained in this Agreement shall be true and correct at and as of
the Closing Date with the same force and effect as though made at and as of
that time except (i) for changes specifically permitted by or disclosed on
any Schedule to this Agreement, and (ii) that those representations and
warranties which address matters only as of a particular date shall remain true
and correct as of such date.  The obligations
of Sellers to be performed on or before the Closing Date pursuant to the terms
of this Agreement shall have been duly and fully performed in all material
respects or waived by Buyers in writing on or before the Closing Date.   Since the date of this Agreement, there
shall not have occurred any change or event that, individually or in the
aggregate, has had or would reasonably be expected to have a material adverse
effect on the Business, which change or event is continuing or is having a
continuing impact.


 


b)                                  No
Adverse Change or Destruction of Property. 
Between the date hereof and the Closing Date, (i) there shall have
been no Adverse Change in the Business of the Sellers or the Acquired
Companies, and (ii) there shall have been no adverse federal, state or
local legislative or regulatory change affecting in any respect the Acquired
Companies or their assets.


 


c)                                   Certificate
of Sellers.  The Sellers shall have
delivered to Buyers (a) copies of the Acquired Companies’ articles of
incorporation, bylaws or other charter documents as in effect immediately prior
to the Closing Date, and (b) a certificate shall be validly executed on
behalf of Sellers by appropriate executive officers of Sellers certifying that
the conditions specified in Article VI, Article VII and Section 8.1
have been satisfied.


 


d)                                  No
Adverse Litigation.  There shall not
be pending or Threatened any action or proceeding by or before any court or
other governmental body which shall seek to restrain, prohibit, invalidate or
collect damages arising out of the Transactions contemplated hereby, and which,
in the judgment of Buyers, makes it inadvisable to proceed with the
Transactions.


 


e)                                  No
Default or Breach of Contract.  There
shall not be pending or Threatened any claim that either of the Acquired
Companies is in default on any Contract, and no


 


30

















 


condition exists that with
notice or lapse of time or otherwise would constitute a default under any
Contract.


 


f)                                    Deliveries.  All of the deliveries contemplated by Section 8.2
have been made.


 


Section 8.2                                      Closing
Deliveries by the Sellers.  At the
Closing, the Sellers shall have delivered to the Buyers, in proper form for
recording when appropriate.


 


a)                                  Evidence
of Authority.  Evidence of the authority
of each Person executing the Agreement and any Transaction Document on behalf
of the Sellers and evidence of authority and power of each of the Sellers to
enter into the Agreement and any Transaction Document and perform its
obligations thereunder and consummate the transactions contemplated thereby, in
each case in form and substance satisfactory to the Buyers;


 


b)                                 Approval
of Transactions.  A copy of (i) the
minutes of a duly held meeting of the directors or shareholders meeting of the
Acquired Companies authorizing the execution by such Acquired Company of each
of the Transaction Documents to which it is a party, or (ii) other written
evidence of authorization of this Agreement, the Transaction Documents and the
Transactions, and the due execution and delivery of all documentation related
thereto, in form and substance reasonably satisfactory to Buyers;


 


c)                                  Shares;  Certificates and Corporate Documents.  The Sellers shall deliver or cause to be
delivered to the Buyers the following documents:


 


i.                                             the
applicable share transfer forms and/or share certificates representing the
Purchased Shares described in Schedule 4.5 and the updated share register
pursuant to applicable law and Section 2.1 of this Agreement;


 


ii.                                          original
letters, effective as of the Closing Date, of the members of the Board of
Directors of the Acquired Companies providing for the following: (i) their
irrevocable resignation of their positions with the Acquired Companies; and (ii) that
they have no claim nor credit outstanding against the Acquired Companies as of
the Closing Date and, in any event, that they irrevocably waive any claim,
credit or fees they may have against the Acquired Companies;


 


iii.                                       all
books and corporate records of the Acquired Companies, including business
licenses (patentes de comercio) for the Acquired
Companies and the businesses (empresas)
owned by them;


 


iv.                                      By-Laws
of the Acquired Companies, including all amendments thereto;


 


31
















 


v.                                         all
books and records with respect to Tax matters pertinent to the Acquired
Companies relating to any taxable period beginning from the formation of the
Acquired Companies;


 


vi.                                      a
copy of the MOU with BAC, executed by both BAC and Sellers;


 


vii.                                   all
the original agreements executed by each Acquired Company; and


 


viii.                                a
release in full from GE Capital for all loan amounts owed to it by the Acquired
Companies, including for interest, fees and penalties.


 


Section 8.3                                      Consents.  The Sellers shall have obtained any and all
approvals, consents, permits and waivers necessary or appropriate for
consummation of the Transactions contemplated hereby, including without
limitation, the approval of the Transactions by the Shareholder and any other
shareholders of the Acquired Companies, and shall have made all filings,
notices or applications required under applicable law, including without
limitation, all filings for approval with any Governmental Authority to the
transfer of the Purchased Shares.


 


ARTICLE IX

CONDITIONS TO THE OBLIGATIONS OF SELLERS


 


Section 9.1                                      Conditions.  The obligations of the Sellers to effect the
Transactions shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions, any or all of which may be waived in whole or
in part in writing by the Sellers:


 


a)                                  Accuracy
of Representations and Warranties and Compliance with Obligations.  The representations and warranties of each of
the Buyers contained in this Agreement and the Transaction Documents shall be
true and correct at and as of the Closing Date with the same force and effect
as though made at and as of that time except (a) for changes specifically
permitted by or disclosed pursuant to this Agreement, and (b) that those
representations and warranties which address matters only as of a particular
date shall remain true and correct as of such date.  The Buyers shall have performed and complied
with all of its obligations required by this Agreement to be performed or
complied with at or prior to the Closing Date. 
The Buyers shall have delivered to the Sellers a certificate, dated as
of the Closing Date, and signed by an officer thereof, certifying that such
representations and warranties are true and correct, and that all such
obligations have been performed and complied with, in all material respects.


 


Section 9.2                                      Consideration.  At the Closing, the Buyers shall have paid
the Purchase Price to the Shareholders.


 


32

















 


Section 9.3                                      No
Order or Injunction.  There shall not
be pending by or before any court or other governmental body an order or
injunction restraining or prohibiting the Transactions contemplated hereby.


 


Section 9.4                                      Closing
Deliveries by the Buyers.  At the
Closing, the Buyers shall deliver to the Sellers, evidence of the authority of
each Person executing the Agreement and any Transaction Document on behalf of
the Buyers and evidence of authority and power of each of the Buyers to enter
into the Agreement and any Transaction Document and perform its obligations
thereunder and consummate the transactions contemplated thereby, in each case
in form and substance satisfactory to the Sellers.


 


ARTICLE X

OTHER AGREEMENTS


 


Section 10.1                                Further
Assurances.  Each of the Sellers and Buyers shall, and
shall cause each of the Acquired Companies to, take all commercially
reasonable actions necessary to comply promptly with all legal requirements
which may be imposed on themselves and will promptly cooperate with and furnish
information to each other in connection with any such requirements imposed upon
any of them.


 


Section 10.2                                Publicity.  Except as mutually agreed in writing by the
parties, there shall be no press release or other announcement concerning this
Agreement or the transactions contemplated hereby, it being acknowledged and
agreed that a press release announcing the transaction will be issued and that
Genpact Limited will file an 8-K with the SEC respecting the transactions.


 


Section 10.3                                No
Additional Representations.  The
Buyers acknowledge that neither the Sellers, the Acquired Companies nor any
other Person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any information regarding the Sellers or the
Acquired Companies, except as expressly set forth in this Agreement, the
Transaction Document and in the Related Agreements.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN ARTICLE V AND VI, THE SELLERS DO NOT MAKE ANY
REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT
OF THE SELLERS OR THE ACQUIRED COMPANIES OR ANY OF THE ASSETS, LIABILITIES OR
OPERATIONS OF THE SELLERS OR THE ACQUIRED COMPANIES, AND THE BUYERS EXPRESSLY
DISCLAIM ANY SUCH REPRESENTATION OR WARRANTY, provided that this disclaimer
shall not effect, waive, reduce or otherwise modify Sellers’ obligations,
representations and warranties contained in the other Transaction Documents.


 


Section 10.4                                Limitation
of Recourse. The rights of the parties for indemnification relating to this
Agreement on the transactions contemplated hereby shall be strictly limited to
those contained herein and, subject to the last sentence hereof, such
indemnification rights shall be the exclusive remedies of the parties
subsequent to the Closing with respect to any matter in any way relating to
this Agreement or arising in connection herewith.  To the maximum extent permitted


 


33

















 


by Law, the Buyers hereby waive
and shall cause the Acquired Companies to waive all other rights and remedies
with respect to any such matter, whether under any Laws, at common law, in
equity or otherwise.


 


ARTICLE XI

TAX MATTERS


 


Section 11.1                              Conveyance
Taxes.  Any U.S. or Guatemalan
transfer, documentary, sales, use, stamp, registration and other such Taxes and
duties attributable to or incurred in connection with the transfer of the
Seller’s Shares to Buyer whether payable prior to, at or after the Closing
(collectively, “Transaction Conveyance Taxes”) shall be borne by Seller.


 


Section 11.2                              Preparation
and Filing of Tax Returns.


 


a)                                  Sellers shall prepare and timely
file or shall cause to be prepared and timely filed all required Tax Returns of
the Acquired Companies for any Pre-Closing Tax Period.


 


b)                                 Buyers shall prepare or cause to be
prepared and shall file or cause to be filed all other Tax Returns required to
be filed by or in respect of the Acquired Companies after the Closing Date; provided,
that with respect to any such Tax Returns for a Straddle Period, such Tax
Returns shall be prepared, all elections with respect to such Tax Returns shall
be made, and all Taxes shall be paid to the extent permitted by Law.  Before filing any Tax Return with respect to
any Straddle Period, Buyers shall provide Sellers with a copy of such Tax
Return at least fifteen (15) Business Days prior to the last date for timely
filing such Tax Return (giving effect to any valid extensions thereof)
accompanied by a statement calculating in reasonable detail Sellers’
indemnification obligation, if any, pursuant to this Article 11.  If for any reason Sellers do not agree with
Buyers’ calculation of their indemnification obligation, Sellers shall notify
Buyers of their disagreement within five (5) Business Days of receiving a
copy of the Tax Return and Buyers’ calculation. 
If Sellers agree with Buyers’ calculation of their indemnification
obligation, Sellers shall pay to Buyers the amount of Sellers’ indemnification
at the time specified below.


 


Section 11.3                              Tax
Indemnification.


 


a)                                  Sellers shall indemnify, defend and
hold Buyers, the Acquired Companies and their respective Affiliates harmless,
jointly and severally, from and against (i) any liability for Taxes
imposed on the Acquired Companies with respect to any Pre-Closing Tax Period
and the portion of any Straddle Period ending on the Closing Date (as
determined pursuant to (c)), in each case; (ii) all liability (as a result
of Treasury Regulation Section 1.1502-6(a) and any analogous
provisions of state, local or foreign Laws) for Taxes of any Person (other than
the Acquired Companies) which is or has ever been affiliated with the Acquired
Companies and


 


34

















 


joined or was
required to join in filing any consolidated, combined or unitary Tax Return,
prior to the Closing; (iii) all Transaction Conveyance Taxes; (iv) until
those certain administrative clarifications to the FTZ User Authorization are
obtained, any liability for Taxes imposed as a result of the FTZ Genpact User
Authorization not providing the Tax benefit intended by it to provide; (v) any
Taxes imposed on any Buyer or Acquired Company related to any payments made by
BAC to a Buyer or Acquired Company, including without limitation, those
relating to the payment described in Section 2.4(b), to the extent not
paid by BAC; and (vi) a breach of Section 4.8 hereof.


 


b)                                 Buyers shall indemnify, defend and
hold Sellers harmless, jointly and severally, from and against (i) any
liability for Taxes imposed on the Acquired Companies with respect to any
Post-Closing Tax Period and the portion of any Straddle Period beginning after
the Closing Date (as determined pursuant to (c)), except for those matters
described in Sections 11.3(a)(iv) and (v).


 


c)                                  For purposes of this Agreement, in
the case of Taxes that are payable with respect to a Straddle Period, the
portion of any such Tax that is allocable to the portion of the period ending
on the Closing Date shall be:


 


i.                                             in the case of Taxes that are either
(1) based upon or related to income or receipts, or (2) imposed in
connection with any sale or other transfer or assignment of property (real or
personal, tangible or intangible), deemed equal to the amount that would be
payable if the taxable year ended with (and included) the Closing Date; and


 


ii.                                          in the case of Taxes imposed on a
periodic basis with respect to the assets of the Acquired Entities or otherwise
measured by the level of any item, deemed to be the amount of such Taxes for
the entire period (or, in the case of such Taxes determined on an arrears
basis, the amount of such Taxes for the immediately preceding period),
multiplied by a fraction the numerator of which is the number of calendar days
in the period ending on the Closing Date and the denominator of which is the
number of calendar days in the entire period.


 


iii.                                       Any indemnity payments made pursuant
to Article II shall be adjusted to account for any net income Taxes
(excluding withholding Taxes) imposed upon the receipt of such payment and
shall be made net of any Tax Benefit available to the recipient of such payment
that results from the loss giving rise to such indemnity payments.  For purposes of determining the amount of any
Tax Benefit, the recipient of the Tax Benefit shall be deemed to pay Tax at the
highest income tax corporate marginal rate in effect in the year such
indemnifiable loss is incurred and shall be


 


35

















 


deemed to realize or
utilize any Tax Benefit in the first taxable year that such Tax Benefit may be
realized or utilized under applicable Law and the projected utilization of such
Tax Attributes as computed by the recipient of such Tax Benefit.  If a Tax Benefit resulting from an
indemnifiable loss is available in multiple Tax years, the amount of such Tax
Benefit for purposes of this (b) iii shall be the net present value of all of
such available Tax Benefits, calculated by using a discount rate equal to the
long-term applicable federal rate for the month in which such indemnifiable
loss is incurred.


 


Section 11.4                              Time
and Manner of Payment.   Any payment
required to be made pursuant to Article XI shall be (i) treated as an
adjustment to Purchase Price and (ii) made within 30 Business Days of such
party requesting such payment in writing and in all events not later than three
Business Days prior to the due date (including extensions) for such payment.


 


Section 11.5                              Tax
Refunds.


 


a)                                  Buyer
shall pay or cause the Acquired Companies to pay to Sellers the amount of any
refunds or credits of Taxes actually received by the Acquired Companies, plus
any interest received with respect thereto from the applicable Governmental
Authority for (i) any Pre-Closing Tax Period and (ii) the portion of
any Straddle Period (determined pursuant to 11.3(c)) ending on the Closing
Date, within ten (10) Business Days after the Acquired Companies receive
such refund or claims such credit.


 


b)                                 Sellers shall pay or cause to pay to
Buyer the amount of any refunds or credits of Taxes of the Acquired Companies
actually received by Seller or any of their Affiliates, if any, plus any
interest received with respect thereto from the applicable Governmental
Authority for (i) any Post-Closing Tax Period and (ii) the portion of
any Straddle Period (determined pursuant to 11.3(c)) beginning after the
Closing Date, within ten (10) Business Days after receipt of such refund
or claims such credit.


 


Section 11.6                              Section 338
Election.  Buyers may make an
election pursuant to Section 338(g) of the Code with respect to the
Acquired Companies.


 


Section 11.7                              Tax
Sharing Agreements.  On the Closing
Date, all Tax sharing agreements and arrangements between (i) the Acquired
Companies, on the one hand, and (ii) Sellers or any of their Affiliates
(other than the Acquired Companies), on the other hand, shall be terminated
effective as of the Closing Date and have no further effect after the Closing
Date.


 


Section 11.8                              Cooperation,
Exchange of Information and Record Retention   The Parties recognize that each Party may
need access, from time to time, after the Closing Date, to certain accounting
and Tax records and information of the Acquired Companies held by Sellers or
the Acquired Companies; therefore, from and after the Closing Date, each Party
shall, and shall


 


36

















 


cause its applicable Affiliates
(including the Acquired Companies), officers, employees, agents, auditors and
representatives to, (A) retain and maintain all such records including all
Tax Returns, schedules and work papers, records and other documents in its
possession relating to Tax matters of the Acquired Companies for any
Pre-Closing Tax Period until the later of (i) the expiration of the
statute of limitations of the taxable periods to which such Tax Returns and
other documents relate (giving effect to any valid extensions) or (ii) six
years following the due date for such Tax Returns (giving effect to any valid
extensions), (B) allow the other Parties, their Affiliates and their
respective officers, employees, agents, auditors and representatives, upon
reasonable notice and at mutually convenient times, to access employees and to
inspect, review and make copies of such records (at the expense of the Party
requesting the records) as such Parties may deem reasonably necessary or
appropriate from time to time and (C) as reasonably requested by any
Party, cooperate and make employees available to provide additional information
or explanation of materials or documents. 
The Parties shall provide each other with written notice 30 calendar
days prior to transferring, destroying or discarding the last copy of any records,
books, work papers, reports, correspondence and other similar materials and
shall have the right, at the requesting Parties’ expense, to copy or take any
such materials.  Any information obtained
under this Section 11.8 shall be kept confidential except as may be
otherwise necessary in connection with the filing of Tax Returns or claims for
refund or in conducting an audit or other proceeding.


 


Section 11.9                              Tax
Contests.


 


a)                                  If a claim for Taxes (including
notice of a pending audit) is made by any Governmental Authority in writing (a “Tax Claim”),
which, if successful, might result in an indemnity payment pursuant to Section 11.3,
the party seeking indemnification (the “Tax
Indemnified Party”) shall notify
the other party (the “Tax Indemnifying Party”) in writing of the Tax Claim within ten (10) Business
Days of the receipt of such Tax Claim. 
If notice of a Tax Claim (a “Tax
Notice”) is not given to the Tax
Indemnifying Party within such period or in detail sufficient to apprise the
Tax Indemnifying Party of the nature of the Tax Claim, the Tax Indemnifying
Party shall not be liable to the Tax Indemnified Party to the extent that the
Tax Indemnifying Party is materially prejudiced as a result thereof.


 


b)                                 The Tax Indemnifying Party shall
control all proceedings and may make all decisions taken in connection with
such Tax Claim (including selection of counsel) and, subject to the condition
in the following sentence, may in its sole discretion pursue or forego any and
all administrative appeals, proceedings, hearings and conferences with any
Governmental Authority with respect thereto, and may either pay the Tax claimed
and sue for a refund where applicable Law permits such refund suits or contest
the Tax Claim in any permissible manner. 
Notwithstanding the foregoing, the Tax Indemnifying Party shall not be
entitled to settle, either administratively or after the commencement of
litigation, any Tax Claim with respect to any Tax Return which would materially
and adversely affect the liability for Taxes of the Tax Indemnified Party
(including the imposition of income Tax deficiencies, the reduction of asset
basis or cost adjustments, the lengthening of any amortization or depreciation
periods, the


 


37

















 


denial of any
amortization or depreciation deductions, or the reduction of any loss or credit
carry forwards) without the prior written consent of the Tax Indemnified Party,
which consent shall not be unreasonably withheld, delayed or conditioned,
unless the Tax Indemnifying Party agrees to fully indemnify the Tax Indemnified
Party and its Affiliates against the Taxes resulting from such settlement.  The Tax Indemnified Party shall be entitled
to be informed of the developments with respect to such Tax Claim at any administrative
meeting, conference, hearing or other proceeding.


 


c)                                  With respect to any Tax Claim for a
Straddle Period, the Party which would bear the burden of the greater portion
of the sum of any adjustments shall control such Tax Claim; provided, however,
that such controlling Party shall (i) keep the non-controlling Party
informed of all developments, (ii) permit the non-controlling Party to
participate at its own expense and (iii) not settle or compromise such Tax
Claim without the prior written consent of the non-controlling Party, which
consent shall not be unreasonably withheld or delayed.


 


d)                                 In the event of a Tax Claim that
involves issues (A) relating to a potential adjustment for which the Tax
Indemnifying Party has liability and (B) that are required to be dealt
with in a proceeding that also involves separate issues that could affect the
Taxes of the Tax Indemnified Party, to the extent permitted by applicable Law, (x) the
Tax Indemnifying Party shall have the right at its expense to control the Tax
Claim but only with respect to the former issues and (y) the Tax
Indemnified Party shall have the right at its expense to control the Tax Claim
but only with respect to the latter issues.


 


Section 11.10                        Exclusivity.  Article XI shall govern all matters,
including indemnification claims, with respect to Taxes.


 


ARTICLE XII

TERMINATION


 


Section 12.1                              Termination.   This Agreement may be terminated and
the Transactions contemplated hereby may be abandoned, at any time prior to the
Closing:


 


a)                                  by
mutual consent of the Sellers and Buyers;


 


b)                                 by
either Sellers or Buyers upon written notice to the other, if the transactions
contemplated by this Agreement are not consummated by the date which is six (6) months
following the Effective Date of this Agreement, except to the extent that such
failure arises out of, or results from, a material breach by any of the Party
or Parties, as applicable, seeking to terminate this Agreement or any
representation, warranty, covenant or obligation of such Party contained herein.


 


38

















 


i.                                              by
Buyers, if the Buyers’ Conditions to Closing contained in Article VIII
shall not have been satisfied and Closing shall not have occurred within three (3) months
or (ii) by Sellers, if the Sellers’ Conditions to Closing contained in Article IX
shall not have been satisfied and Closing shall not have occurred within three (3) months;
provided, however that the right to terminate this Agreement under this Section 12.1
shall not be available to any party whose breach or failure to fulfill any
obligation under this Agreement shall be the cause of the failure of the
Closing to occur on or before such date;


 


ii.                                           by
Sellers, on the one hand, or by Buyers, on the other hand, if there has been a
material breach of any covenant or a material breach of any representation or
warranty on the part of the Buyers or the Sellers, as the case may be, and such
breach is not cured by the earlier of the Closing Date or ten (10) Business
Days after receipt by the Sellers or Buyers, as the case may be, of notice from
the other specifying with particularity such breach, and such breach has not
been waived by the Sellers or the Buyers, as the case may be; and


 


iii.                                        by
Sellers, on the one hand, or by Buyers, on the other hand, if any law or
regulation of any competent authority shall be enacted that renders illegal or
otherwise prohibits consummation of the Transactions contemplated hereby or if
any judgment, injunction, order or decree of any competent authority that renders
illegal or otherwise prohibits such Transactions is entered and such judgment,
injunction, order or decree shall become final and nonappealable.


 


Section 12.2                              Notice
of Termination.  If any party becomes
aware of facts or circumstances that would entitle such party to terminate this
Agreement pursuant to this Article XII, such party shall immediately
notify the other parties of such facts and circumstances.  Notwithstanding any other provisions of this
Agreement, if rectifiable, such notified party shall have ten (10) Business
Days in which to rectify such facts or circumstances and the notifying party
shall not be entitled to terminate this Agreement if such facts or
circumstances are so rectified.


 


Section 12.3                              Effect
of Termination.  In the event of the
termination of this Agreement pursuant to this Article XII by the Buyers
or the Sellers, written notice thereof shall forthwith be given to the other
party specifying the provision hereof pursuant to which such termination is
made, and this Agreement shall be terminated and there shall be no liability
hereunder on the part of the Buyers or the Sellers, except that the provisions
of Section 7.2 and this Article XII and Articles XIII and XIV shall
survive any termination of this Agreement. 
Nothing in this Article XII shall relieve any party of liability
for any willful breach of this Agreement; provided that neither Buyers
nor Sellers shall be entitled to claim, and each hereby expressly waives any
right to, any consequential, punitive or other special damages.


 


39

















 


ARTICLE XIII

INDEMNIFICATION


 


Section 13.1                              Survival
of Representations and Warranties and Covenants.


 


a)                                  The representations and warranties
set forth herein, and the right to commence any claim with respect thereto,
shall survive the Closing for a period of 18 months; provided that the
representations and warranties set forth in Sections 4.1, 4.2, 4.4, 4.5, 4.22,
4.23 and 5.1  and the right to commence
any claim with respect thereto, shall survive the Closing indefinitely.  All covenants and agreements set forth herein
which by their terms contemplate actions or impose obligations following the
Closing shall survive the Closing and remain in full force and effect in
accordance with their terms, except that claims for indemnification in respect
of any breach thereof shall survive until the date that is eighteen (18) months
after the time for performance of such covenants or agreements.  Any claim for indemnity under this Agreement
with respect to any breach of such representations, warranties, covenants or
agreements shall be deemed time-barred, and no such claim shall be made after
the periods specified in this (a); provided, however, that if
written notice of a claim for indemnification under (a) or (b) shall have been
provided to Sellers, on the one hand, or Buyers, on the other hand, as the case
may be, then any representations, warranties, covenants or agreements that are
the subject of such indemnification claim that would otherwise terminate as set
forth above shall survive as to such claim until such time as such claim is
fully and finally resolved.


 


b)                                 This Article XIII shall not
limit any covenant or agreement of the Parties contained in this Agreement
which by its terms contemplates performance after the Closing, and shall not
extend the applicability of any covenant or agreement of the Parties contained
in this Agreement which by its terms relates only to a period between the date
hereof and the Closing.


 


c)                                  The rights of any Person to
indemnification under this Article XIII shall not be affected by any
knowledge at or prior to the execution of this Agreement or at or prior to the
Closing of any breach of representation or warranty, whether such knowledge
came from either of the Parties, or any waiver of Section 4.1(e) (Failure
to obtain Governmental Authorization).


 


Section 13.2                              Indemnification
of Buyers.   Subject to the terms of
this Article XIII, from and after the Closing Date, Sellers shall jointly
and severally indemnify, defend, save and hold harmless each of the Buyers and
its Affiliates and each of its and their respective officers, directors,
employees, agents and representatives (collectively, the “Buyer Indemnified
Parties”) from and against any and all Losses resulting from, arising out of or
related to:


 


a)                                  any breach by Sellers of any
representation or warranty in this Agreement or in the officer’s certificate
delivered pursuant to Section 8.1(c);


 


40
















 


b)                                    the failure by Sellers timely to
perform any of its covenants or agreements contained in this Agreement;


 


c)                                     The provision of services by the
Acquired Companies to Sellers, their Affiliates (not including the Acquired
Companies) or BAC prior to the Closing Date; and


 


d)                                    any liabilities, obligations and
commitments (including with respect to Taxes, costs and expenses), whether
express or implied or actual or contingent, with respect to employees of either
Acquired Company.


 


Section 13.3           Indemnification of
Sellers.  Subject to the terms of
this Article XIII, from and after the Closing Date, each of Buyers shall
indemnify, defend, save and hold harmless Sellers and their respective
Affiliates and each of their respective officers, directors, employees, agents
and representatives (collectively, the “Seller
Indemnified Parties” and,
together with the Buyer Indemnified Parties, the “Indemnified
Parties”) from and against any
and all Losses resulting from, arising out of or related to:


 


a)                                     any breach by Buyers of any
representation or warranty in this Agreement or in the officer’s certificate
delivered pursuant to this Agreement;


 


b)                                    the failure by Buyers timely to
perform any of their covenants or agreements contained in this Agreement and


 


c)                                     any obligations that GE Capital may
have to the landlord under the Sublease as a result of its guaranty of the
obligations of Administrator under the Sublease.


 


Section 13.4           Claims


 


a)                                     Upon receipt by an Indemnified Party
of notice of any action, suit, proceeding, claim, demand or assessment made or
brought by an unaffiliated third party, including any Governmental Authority (a
“Third Party Claim”), with respect to a matter for which such Indemnified Party
is indemnified under this Article XIII which has or is expected to give
rise to a claim for Losses, the Indemnified Party shall promptly (but in any
event within ten days of receipt of such Third Party Claim), in the case of a
Buyer Indemnified Party, notify Sellers, and, in the case of a Seller
Indemnified Party, notify Buyers (Sellers or Buyers, as the case may be, the “Indemnifying
Party”), in writing, indicating the nature of such Third Party Claim and the
basis therefor; provided, however, that any delay or failure by the Indemnified
Party to give notice to the Indemnifying Party shall relieve the Indemnifying
Party of its obligations hereunder only to the extent, if at all, that it is
materially prejudiced by reason of such delay or failure.


 


b)                                    The Indemnifying Party shall have 60
days after receipt of a written notice that complies with the requirements of Section 13.4(a) to
elect, at its option, to exercise its absolute right to assume and control the
defense, at its own expense and by its own counsel, of any such Third Party
Claim and shall be entitled to


 


41

















 


assert any and all
defenses available to the Indemnified Party to the fullest extent permitted by
applicable Law; provided that such assumption and control shall not be
permitted if (1) the Third Party Claim seeks an order, injunction or other
equitable relief, or relief other than monetary damages, against the
Indemnified Party, which the Indemnified Party reasonably determines (x) if
successful would reasonably be expected to have a material adverse effect on the
Indemnified Party or would otherwise materially impair the Indemnified Party’s
ability to conduct its business and (y) after conferring with its outside
counsel, cannot be readily separated from any related Third Party Claim for
monetary damages; (2) the Indemnified Party shall have been advised by its
outside counsel that there may be a conflict of interest between the
Indemnified Party and the Indemnifying Party in the conduct of the defense of
such Third Party Claim; (3) taking into account all other bona fide
pending claims for indemnification, the Indemnified Parties would not
reasonably be expected to be indemnified with respect to any material portion
of the Losses arising from such Third Party Claim in the event of an adverse
determination; or (4) the Third Party Claim alleges criminal conduct or
involves criminal penalties with respect to the Acquired Companies or the then
current directors, officers or employees of (x) the Acquired Companies,
Buyers or their Affiliates, in the case of Sellers as the Indemnifying Parties
or (y) Sellers or their Affiliates, in the case of Buyers as the
Indemnifying Party provided, further, that, from the date of any such
assumption and control of the defense of a Third Party Claim, the Indemnifying
Party, regardless of whether it is otherwise required to indemnify the
Indemnified Party hereunder with respect to such Third Party Claim, shall be
responsible for the costs and fees of the Indemnifying Party’s attorneys and
related litigation expenses incurred by the Indemnifying Party in connection
with such Third Party Claim.


 


c)                                     If the Indemnifying Party shall
undertake to compromise or defend any such Third Party Claim, it shall promptly
notify the Indemnified Party of its intention to do so, and the Indemnified
Party shall cooperate fully with the Indemnifying Party and its counsel in the
compromise of, or defense against, any such Third Party Claim.  Such cooperation shall include (1) furnishing
and, upon request, procuring the attendance of potential witnesses for interview,
preparation, submission of witness statements and the giving of evidence at any
related hearing; (2) promptly furnishing documentary evidence to the
extent available to it or its Affiliates; and (3) providing access to any
other relevant party, including any representatives of the Parties as
reasonably needed; provided, however, that the Indemnifying Party
shall not settle, compromise or discharge, or admit any liability with respect
to, any such Third Party Claim without the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or
delayed), unless the relief consists solely of money Losses to be paid by the
Indemnifying Party and includes a provision whereby the plaintiff or claimant
in the matter releases the Indemnified Party from all liability with respect
thereto.  Notwithstanding an election to
assume and control the defense of such action or proceeding, the Indemnified
Party shall have the right to employ


 


42

















 


separate counsel and
to participate in the defense of such action or proceeding, and the
Indemnifying Party shall bear the reasonable fees, costs and expenses of such
separate counsel if the (A) Indemnified Party shall have determined in
good faith that an actual or potential conflict of interest makes
representation by the same counsel or the counsel selected by the Indemnifying
Party inappropriate or (B) Indemnifying Party shall have authorized the
Indemnified Party to employ separate counsel at the Indemnifying Party’s
expense.  In any event, the Indemnified
Party and Indemnifying Party and their counsel shall cooperate in the defense
of any Third Party Claim subject to this Article XIII and keep such
Persons informed of all developments relating to any such Third Party Claims,
and provide copies of all relevant correspondence and documentation relating
thereto.  All costs and expenses incurred
in connection with the Indemnified Party’s cooperation shall be borne by the
Indemnifying Party.  In any event, the
Indemnified Party shall have the right at its own expense to participate in the
defense of such asserted liability.


 


d)                                    If the Indemnifying Party, after
receiving a written notice that complies with Section 13.4(a) of a Third Party Claim, does not
elect to defend such Third Party Claim within 45 days after receipt of such
written notice, the Indemnified Party shall have the right, in addition to any
other right or remedy it may have hereunder, at the Indemnifying Party’s
expense, to defend such Third Party Claim (upon providing further written
notice to the Indemnifying Party), subject to the right of the Indemnifying
Party to approve the counsel selected by the Indemnified Party (“Indemnified Party Counsel”), which approval shall not be unreasonably
withheld or delayed; provided, however, that the Indemnified
Party shall not settle, compromise or discharge, or admit any liability with
respect to any such Third Party Claim without the written consent of the
Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).  Notwithstanding the foregoing,
unless expressly agreed by the Indemnifying Party, the Indemnified Party
Counsel shall not assume any representation of the Indemnified Party in a
dispute between the Parties during the time of its retention as Indemnified
Party Counsel.


 


e)                                     If the Indemnified Party wishes to
admit liability or agree or compromise in respect of any Third Party Claim it
is defending pursuant to d), it must provide a written notification to the
Indemnifying Party specifying the course of action proposed by the Indemnified
Party to be taken (including the amount of any proposed settlement).  If no reply is received from the Indemnifying
Party within 30 days of such written notification being made to it by the
Indemnified Party, then the Indemnifying Party shall be deemed to have
consented to the course of action proposed by the Indemnified Party to be
taken; provided, however, that the Indemnified Party shall not
consent, and the Indemnifying Party shall not be required to agree, to the
entry into any settlement that (1) requires an express admission of
wrongdoing by the Indemnifying Party or (2) provides for


 


43

















 


injunctive or other
non-monetary relief affecting the Indemnifying Party in any way.  If the Indemnifying Party provides written
notice to the Indemnified Party within the 30-day period that it does not
consent to the intended course of action, it shall set out the reasons
therefor, as well as the course of action which should be followed in respect
of any proposed admission of liability, agreement or compromise with respect to
the Third Party Claim.


 


f)                                       If an Indemnified Party otherwise
settles a Third Party Claim it is defending pursuant to d) without obtaining
the Indemnifying Party’s written consent to such settlement (or waiting the
required 30 days), then the Indemnifying Party shall be relieved of its
indemnification obligations hereunder with respect to such Third Party Claim
unless the Indemnified Party demonstrates that (1) it was actually liable
to the third party claimant; (2) there was no good defense available; and (3) the
settlement amount was reasonable; and if the Indemnified Party does demonstrate
the matters listed in the foregoing clauses (1), (2) and (3), then any
right to indemnification for such Third Party Claim shall be subject to the
requirements and limitations of this Article XIII.


 


g)                                    In the event that any Indemnified
Party has a claim against any Indemnifying Party under this Article XIII
for Losses not involving a Third Party Claim that such Indemnified Party
believes gives rise to a claim for indemnification hereunder, the Indemnified
Party shall promptly deliver notice of such claim to the Indemnifying Party;
provided, however, that any delay or failure by the Indemnified Party to give
notice to the Indemnifying Party shall relieve the Indemnifying Party of its
obligations hereunder only to the extent, if at all, that it is materially
prejudiced by reason of such delay or failure. 
Such written notice shall (i) describe such claim in reasonable
detail including the facts underlying each particular claim and the specific
section(s) of this Agreement pursuant to which indemnification is being
sought for each such set of facts, (ii) attach copies of all material
written evidence upon which such claim is based (provided that to the extent
that such evidence is not reasonably available at such time, the written notice
shall instead indicate that the notifying party will, and the notifying party
shall, promptly provide such evidence when available); and (iii) set forth
the estimated amount of the Losses that have been or may be sustained by the
Indemnified Party.


 


Section 13.5           Maximum
Indemnification Amount. 
Notwithstanding anything in this Agreement to the contrary, in no event
shall either Sellers’ or Buyers’ obligation to indemnify the other exceed the
Purchase Price in the aggregate.


 


Section 13.6           Remedies Exclusive.  Except in cases of fraud, intentional
misrepresentation, willful misconduct or as otherwise specifically provided
herein, the remedies provided in this Article XIII shall be the exclusive
monetary remedies (including equitable remedies that involve monetary payment,
such as restitution or disgorgement, other than specific performance to


 


44





















 


enforce any payment or
performance due hereunder) of the Parties from and after the Closing in
connection with any breach of a representation or warranty, or non performance,
partial or total, of any covenant or agreement contained herein.


 


Section 13.7           Risk of Loss.  Until the Closing, any loss of or damage to
any tangible asset or assets of the Business as a result of fire, casualty,
theft or similar occurrence shall be the sole responsibility of Sellers and
Sellers shall repair, replace or reimburse Buyer for such asset or assets;
provided, that Seller’s liability under this Section 13.7 shall have no
effect on the determination of whether or not a Business Material Adverse
Effect has occurred or would be reasonably expected to occur.


 


Section 13.8           Characterization of
Indemnification Payments. .  Unless
otherwise required by Law, any payment made pursuant to this Article XIII
shall be treated for all Tax purposes as an adjustment to the Purchase Price.


 


Section 13.9           Tax Indemnification.  This Article XIII shall not apply to
indemnification with respect to Taxes, which is exclusively covered by Article XI.


 


ARTICLE XIV

MISCELLANEOUS PROVISIONS


 


Section 14.1           Assignment.  Neither any of the Sellers nor the Buyers
shall assign or transfer any of their rights under this Agreement whether in
whole or in part without the prior written consent of the other party, except
that a Buyer or a Seller may assign this contract to an Affiliate without the
other Parties’ consent.


 


Section 14.2           Costs.  Except where this Agreement provides
otherwise, each Party shall pay its own costs relating to the negotiation,
preparation, execution and performance by it of this Agreement and of each
document referred to in it.  The Sellers
shall pay all costs and expenses related to the transfer of any Purchased
Shares or assets of the Sellers in accordance with applicable law.


 


Section 14.3           Entire Agreement.  This Agreement and the Transaction Documents
constitute the entire agreement and supersede any previous agreements relating
to the subject matter hereto and thereto.


 


Section 14.4           Amendment.  A variation or amendment of this Agreement is
only valid if it is in writing and signed by or on behalf of each Party.


 


Section 14.5           Waiver.  The failure to exercise or delay in
exercising a right or remedy provided by this Agreement or by law does not
impair or constitute a waiver of the right or remedy or an impairment of or a
waiver of other rights or remedies.  No
single or partial exercise of a right or remedy provided by this Agreement or
by law prevents further exercise of the right or remedy or, the exercise of
another right or remedy.


 


45





















 


Section 14.6                               Remedies.


 


a)                                     The
Parties’ rights and remedies contained in this Agreement are cumulative and not
exclusive of rights or remedies provided by law except as expressly limited
herein.


 


b)                                    If
a Party fails to pay a sum due from it under this Agreement on the due date of
payment in accordance with the provisions of this Agreement, that Party shall
pay interest on the overdue sum from the due date of payment until the date on
which its obligation to pay the sum is discharged at the Agreed Interest Rate
(accrued daily and compounded monthly).


 


c)                                     Save
as otherwise expressly provided herein, any payment to be made by any Party
under this Agreement shall be made in full without any set-off, restriction,
condition or deduction for or on account of any counterclaim.


 


Section 14.7           Severability.  If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable under the laws of any
jurisdiction, that shall not affect: (a) the legality, validity or
enforceability in that jurisdiction of any other provision of this Agreement;
or (b) the legality, validity or enforceability under the law of any other
jurisdiction of that or another provision of this Agreement.


 


Section 14.8           Notices.  A notice or other communication under or in
connection with this Agreement (a “Notice”) shall be: (a) in writing; (b) in
the English language; and (c) delivered personally or sent by pre-paid
recorded delivery (and air mail if overseas) or by fax (provided that a copy of
the Notice is dispatched to the recipient by post pre-paid recorded delivery
(air mail if available) no later than the end of the next Business Day) to the
Party due to receive the Notice to the address set out in Section 14.8 or
to another address, person or fax number specified by that Party by not less
than seven (7) days’ written notice to the other Party prior to the date
that the Notice was dispatched.   Unless
there is evidence that it was received earlier, a Notice is deemed given if: (a) delivered
personally, when left at the address referred to in Section 14.8; (b) sent
by overnight pre-paid courier, two (2) Business Days after posting it; (c) sent
by fax, when confirmation of its transmission has been recorded by the sender’s
fax machine; and (d) sent by any other means, six (6) Business Days
after posting it.


 


The addresses
for Notices hereunder are:


 


	
  Name of Party

  	
   

  	
  Address

  	
   

  	
  Fax No.

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Sellers:

  	
   

  	
  General Electric Capital

  Corporation

  

  GE Consumer Finance, Inc.
 777 Long Ridge Road
 Stamford, Connecticut

  06902-1250

  	
   

  	
  (866) 269-7484

  	
   

  	
  Senior Legal Counsel

  GE Money Americas

  



 


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  Name of Party

  	
   

  	
  Address

  	
   

  	
  Fax No.

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  A.D. Sosa & Soto

  15 calle “A” 14-44
  zona 10

  Guatemala, Guatemala

  	
   

  	
  (502) 2384 6600

  	
   

  	
  Carlos Rafael Pellecer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Buyers:

  	
   

  	
  Genpact Limited

   

  Genpact Luxembourg, S.A.R.L.

  	
   

  	
  (646) 823-0469

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1251 Avenue of the

  Americas, Suite 4100

  New York, N.Y. 10020

  	
   

  	
   

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Arias & Muñoz

  Ave. La Reforma 7-62,
  Edif.

  Aristos Reforma Nivel 10, of.

  1001-E

  Guatemala C.A.

  Guatemala

  	
   

  	
  (502) 2362 9331

  	
   

  	
  Jose Augusto Toledo

  



 


Section 14.9                               Informal
Dispute Resolution


 


a)                                     The Parties will attempt to
informally resolve any and all claims, disputes,
demands and/or proceedings regarding and/or in any way arising
under this Agreement or in connection with this Agreement or with the
Transactions, including the Agreement’s enforcement and/or
interpretation (“Disputes”).   Any
party to the Dispute may provide written notice to the other party that it
desires to submit such Dispute to the applicable Site Leader for resolution,
which notice will set forth the subject of the Dispute and the relief
requested.  Within a reasonable period
(but in no event more than thirty (30) days from the date such notice is
received by the other party), the Site Leaders will meet and negotiate in good
faith to resolve the Dispute.


 


b)                                    In
the event of any Dispute that the Site Leaders are unable to resolve within
such thirty (30) day period, any party to the Dispute may provide written
notice to the other party thereto that it desires to submit such Dispute to a
higher level of management of the other Party for resolution, which notice will
set forth the subject of the Dispute and the relief requested.  Within a
reasonable period (but in no event more than thirty (30) days from the date
such notice is received by the other party), a higher of management of both
Parties (the “Executives”) will meet and negotiate in good faith to resolve the
Dispute.  If the Executives are unable to 


 


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resolve such Dispute within
such period, either Party may proceed to arbitration of the Dispute in
accordance with Section 14.10 below.


 


Section 14.10         Arbitration of
Disputes.


 


a)                                     Any and all Disputes
that are not resolved under Section 14.9 above shall be exclusively and
finally resolved and decided by binding arbitration, in the City of Miami,
Florida, pursuant to the then-applicable arbitration rules of the
International Chamber of Commerce (the “ICC”). 
The arbitration shall be conducted in the English language, provided
that testimony and documents may be submitted in a foreign language accompanied
by an English translation.  The arbitral
proceedings shall be confidential, and any information disclosed therein shall
be treated by the parties as Proprietary Information.  There shall be three (3) arbitrators to
be selected in the following manner. 
Within 30 days after the date of the notice initiating arbitration, one
arbitrator shall be selected by the petitioning party (“Petitioning Party”) and
one arbitrator shall be selected by the party defending the arbitration (“Defending
Party”), within 30 days thereafter, failing which such arbitrator shall be
appointed by the ICC pursuant to ICC rules.  The third arbitrator shall be
selected by the two arbitrators selected by the Petitioning Party and the
Defending Party, or, if such arbitrators cannot agree within 30 days on the
third arbitrator, such arbitrator will be selected by the ICC pursuant to ICC
rules.


 


b)                                    The
decision of the arbitral panel shall be in writing and shall set forth in
detail the facts of the Dispute and the reasons for the decision.  Each party accepts and consents to the
jurisdiction of the arbitral panel and, solely for purposes of the enforcement
of the arbitral award, any court of competent jurisdiction, for itself and in
respect of its property, and waives in respect of both itself and its property,
any defense it may have as to or based on sovereign immunity, lack of jurisdiction,
improper venue or inconvenient forum. 
The arbitral award shall be binding on the parties hereto, who hereby
waive any appeal of such award.  In the
event that the losing party fails or refuses to comply with the arbitral award
within 14 days following the date of receipt of notice of the award, then the
prevailing party, the arbitrators or their respective attorneys-in-fact may
immediately proceed to request the judicial approval necessary for execution
before a competent court or before any other court where such party or its
assets and properties may be found.  The
arbitral panel shall not have the authority to award punitive damages to any
injured party.


 


c)                                     Each
of the parties irrevocably consents to the service of process, notices or other
papers in connection with or in any way arising from the arbitration or the
enforcement of any arbitral award, by use of any of the methods and to the
addresses set forth for the giving of notices herein. Nothing contained herein
shall affect the right of any party to serve such processes, notices or other
papers in any other manner permitted by applicable law.


 


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d)                                    At
the commencement of the arbitration proceedings, the Petitioning Party and
Defending Party shall deposit with the ICC, in equal shares, an amount
sufficient to cover all expenses and fees of the ICC and the arbitrators, which
amount shall be determined in accordance with the ICC
rules.  All of the expenses that arise from the arbitral proceeding as
well as the fees of the arbitrators shall be paid by the losing party, if any,
as determined by the arbitrators.  Said
losing party shall reimburse the prevailing party the amounts deposited by the
prevailing party at the commencement of the arbitration or thereafter as
required by the arbitrators.  The parties
shall each bear the costs and fees of their respective counsel, irrespective of
the outcome of the arbitration.


 


Section 14.11         Governing Language.  This Agreement is drawn up in the English
language.  If this Agreement is
translated into another language, the English language text prevails.  Each notice, demand, request, statement,
instrument, certificate or other communication given, delivered or made by a
Party to any other Party under or in connection with this Agreement shall
be:  (a) in English; or (b) if
not in English, accompanied by an English translation made by a translator, and
certified by such translator to be accurate. The receiving Party shall be
entitled to assume the accuracy of and rely upon any English translation of any
document provided pursuant to this section.


 


Section 14.12         No Third Party
Beneficiary.  Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any Person other than the parties hereto and their respective successors
and permitted assigns any rights or remedies under this agreement.


 


Section 14.13         Section Headings.  The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of any provisions of this Agreement.


 


Section 14.14         Litigation; Prevailing
Party.  In the event of any
litigation with regard to this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party and the non-prevailing party
shall pay all reasonable fees and expenses of counsel for the prevailing party.


 


Section 14.15         Governing Law;
Jurisdiction; Waiver of Jury Trial.


 


a)                                     THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION)
THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK
TO BE APPLIED.


 


b)                                    Each
of the parties hereto hereby irrevocably and unconditionally submits to the
nonexclusive jurisdiction of the State Courts of the State of New York sitting
in 


 


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the Borough of
Manhattan or the United States District Court for the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement to the extent such action or
proceeding is not inconsistent with the Parties choice of arbitration above,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
The Parties hereby irrevocably waive to the fullest extent it may
effectively do so, the defense of forum non
conveniens to the maintenance of such action or proceeding.


 


c)                                     EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY
AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING
HEREUNDER.


 


Section 14.16         Construction.  The provisions of this Agreement shall be
construed according to their fair meaning and neither for nor against any party
hereto irrespective of which party caused such provisions to be drafted.  Each of the parties acknowledges that it, he
or she has been represented by legal counsel in connection with the preparation
and execution of this Agreement.


 


Section 14.17         Counterparts.  This Agreement may be executed in any number
of counterparts, all of which, taken together constitute one agreement and any
Party may enter into this Agreement by executing a counterpart.


 


(REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK)


 


[SIGNATURE PAGE TO FOLLOW]


 


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IN WITNESS WHEREOF, the parties have executed
this Agreement as of the day and year first above written:


 


 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Charles M. Crabtree

  
	
   

  	
   

  	
  Name: Charles M. Crabtree

  
	
   

  	
   

  	
  Title: Vice President, General
  Electric Capital

  
	
   

  	
   

  	
   Corporation

  
	
   

  	
   

  	
   Senior Vice President and Chief Operating

  
	
   

  	
   

  	
   Officer GE Money

  
	
   

  	
   

  	
   

  
	
   

  	
  GE CONSUMER FINANCE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Green

  
	
   

  	
   

  	
  Name:

  	
  Robert Green

  
	
   

  	
   

  	
  Title:

  	
  GE Company Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENPACT
  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pramod Bhasin

  
	
   

  	
   

  	
  Name: Pramod Bhasin

  
	
   

  	
   

  	
  Title: President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENPACT
  LUXEMBOURG S.A R.L.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Victor Guaglianone

  
	
   

  	
   

  	
  Name:

  	
  Victor Guaglianone

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


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Purchase Agreement – Signature Page


 


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