EXHIBIT 2.2
________________________________________________________________________________
DEPOSIT AGREEMENT
________________________________________________________________________________
by and among
XXXXXX COMPUTER SERVICES LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
________________________________________________________________________________
Dated as of May 14, 2001
________________________________________________________________________________
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS................................................................................................ 2
Section 1.1 "ADS Record Date"..................................................................... 2
Section 1.2 "Affiliate"........................................................................... 2
Section 1.3 "American Depositary Share(s)" and "ADS(s)"........................................... 2
Section 1.4 "Applicant"........................................................................... 2
Section 1.5 "Beneficial Owner".................................................................... 2
Section 1.6 "Business Day"........................................................................ 3
Section 1.7 "Commission".......................................................................... 3
Section 1.8 "Company"............................................................................. 3
Section 1.9 "Custodian"........................................................................... 3
Section 1.10 "Deliver" and "Delivery".............................................................. 3
Section 1.11 "Deposit Agreement"................................................................... 3
Section 1.12 "Depositary".......................................................................... 3
Section 1.13 "Deposited Securities"................................................................ 3
Section 1.14 "Dollars"............................................................................. 4
Section 1.15 "DTC"................................................................................. 4
Section 1.16 "DTC Participant"..................................................................... 4
Section 1.17 "Exchange Act"........................................................................ 4
Section 1.18 "Foreign Currency".................................................................... 4
Section 1.19 "Holder".............................................................................. 4
Section 1.20 "National Securities Depository Limited", "NSDL"...................................... 4
Section 1.21 "Pre-Release Transaction"............................................................. 4
Section 1.22 "Principal Office".................................................................... 4
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"........................... 5
Section 1.24 "Registrar"........................................................................... 5
Section 1.25 "Restricted Securities"............................................................... 5
Section 1.26 "Rupees" and "Rs.".................................................................... 5
Section 1.27 "Securities Act"...................................................................... 6
Section 1.28 "Share Registrar"..................................................................... 6
Section 1.29 "Shares".............................................................................. 6
Section 1.30 "United States"....................................................................... 6
ARTICLE II.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS........................................................... 6
Section 2.1 Appointment of Depositary............................................................. 6
Section 2.2 Form and Transferability of Receipts.................................................. 7
Section 2.3 Deposit with Custodian................................................................ 8
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Section 2.4 Registration and Safekeeping of Deposited Securities.................................. 9
Section 2.5 Execution and Delivery of Receipts.................................................... 10
Section 2.6 Transfer, Combination and Split-up of Receipts........................................ 11
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.............................. 11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of Receipts;
Suspension of Delivery, Transfer, etc................................................. 13
Section 2.9 Lost Receipts, etc.................................................................... 14
Section 2.10 Cancellation and Destruction of Surrendered Receipts; Maintenance of Records.......... 14
Section 2.11 Partial Entitlement ADSs.............................................................. 14
Section 2.12 Restricted ADSs....................................................................... 15
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs.............................................................................. 16
Section 3.1 Proofs, Certificates and Other Information............................................ 16
Section 3.2 Liability for Taxes and Other Charges................................................. 17
Section 3.3 Representations and Warranties on Deposit of Shares................................... 17
Section 3.4 Compliance with Information Requests.................................................. 17
Section 3.5 Ownership Restrictions................................................................ 18
ARTICLE IV.
THE DEPOSITED SECURITIES................................................................................... 18
Section 4.1 Cash Distributions.................................................................... 18
Section 4.2 Distribution in Shares................................................................ 19
Section 4.3 Elective Distributions in Cash or Shares.............................................. 20
Section 4.4 Distribution of Rights to Purchase Additional ADSs.................................... 20
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares.................... 22
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form..................... 23
Section 4.7 Redemption............................................................................ 23
Section 4.8 Conversion of Foreign Currency........................................................ 24
Section 4.9 Fixing of ADS Record Date............................................................. 24
Section 4.10 Voting of Deposited Securities........................................................ 25
Section 4.11 Changes Affecting Deposited Securities................................................ 26
Section 4.12 Available Information................................................................. 27
Section 4.13 Reports............................................................................... 27
Section 4.14 List of Holders....................................................................... 27
Section 4.15 List of Restricted Securities Owners.................................................. 28
Section 4.16 Taxation.............................................................................. 28
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ARTICLE V.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.............................................................. 29
Section 5.1 Maintenance of Office and Transfer Books by the Registrar............................. 29
Section 5.2 Exoneration........................................................................... 30
Section 5.3 Standard of Care...................................................................... 30
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary........ 31
Section 5.5 The Custodian......................................................................... 32
Section 5.6 Notices and Reports................................................................... 32
Section 5.7 Issuance of Additional Shares, ADSs etc............................................... 33
Section 5.8 Indemnification....................................................................... 34
Section 5.9 Fees and Charges of Depositary........................................................ 35
Section 5.10 Pre-Release........................................................................... 36
Section 5.11 Restricted Securities Owners.......................................................... 36
ARTICLE VI.
AMENDMENT AND TERMINATION.................................................................................. 37
Section 6.1 Amendment/Supplement.................................................................. 37
Section 6.2 Termination........................................................................... 37
ARTICLE VII.
MISCELLANEOUS.............................................................................................. 38
Section 7.1 Counterparts.......................................................................... 38
Section 7.2 No Third-Party Beneficiaries.......................................................... 39
Section 7.3 Severability.......................................................................... 39
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.............................. 39
Section 7.5 Notices............................................................................... 39
Section 7.6 Governing Law and Jurisdiction........................................................ 40
Section 7.7 Assignment............................................................................ 42
Section 7.8 Compliance with U.S. Securities Laws.................................................. 42
Section 7.9 Titles................................................................................ 42
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May 14, 2001, by and among (i) XXXXXX
COMPUTER SERVICES LIMITED, a limited liability company organized under the laws
of the Republic of India, and its successors (the "Company"), (ii) CITIBANK,
N.A., a national banking association organized under the laws of the United
States of America acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding equity shares,
each with a par value of Rs.2 per share (the "Shares"); and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms
of this Deposit Agreement are to be listed for trading on the New York Stock
Exchange; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such
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term in Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term by
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the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.3 "American Depositary Share(s)" and "ADS(s)"shall mean the
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rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder to evidence such ADSs. As
of the date hereof, each American Depositary Share represents two (2) Shares on
deposit with the Custodian (except as contemplated in Section 5.10 of the
Deposit Agreement). In the event of a distribution upon Deposited Securities
referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional American Depositary Shares are not
issued, each American Depositary Share shall represent the Deposited Securities
specified in such Sections. The Company and the Depositary may at any time
hereafter, subject to applicable law and the terms of the Deposit Agreement,
amend the ADS-to-Share ratio, without, however, adversely affecting the rights
of Holders under the Deposit Agreement to receive the Deposited Securities
represented by the Holders' ADSs before the effective date of the amendment of
the ADS-to-Share ratio.
Section 1.4 "Applicant" shall have the meaning given to such term in
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Section 5.10.
Section 1.5 "Beneficial Owner" shall mean as to any ADS, any person or
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entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of the ADR(s) evidencing
such ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner.
Section 1.6 "Business Day" shall mean any day on which both the banks in
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the Republic of India and the banks in New York are open for business.
Section 1.7 "Commission" shall mean the Securities and Exchange
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Commission of the United States or any successor governmental agency in the
United States.
Section 1.8 "Company" shall mean Xxxxxx Computer Services Limited, a
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limited liability company organized and existing under the laws of the Republic
of India, and its successors.
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Section 1.9 "Custodian" shall mean, as of the date hereof, Citibank,
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N.A. - Mumbai Branch, having its principal office at 81 Xx. Xxxxx Xxxxxx Road,
Worli, Xxxxxx Xxxxx 000000, as the custodian for the purposes of this Deposit
Agreement, and any other entity that may be appointed by the Depositary pursuant
to the terms of Section 5.5 as successor, substitute or additional custodian
hereunder. The term "Custodian" shall mean any Custodian individually or all
Custodians collectively, as the context requires.
Section 1.10 "Deliver" and "Delivery" shall mean, when used in respect of
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ADSs, Deposited Securities and Shares, the physical delivery of the
certificate(s) representing such securities, or the electronic delivery of such
securities by means of book-entry transfer, if available.
Section 1.11 "Deposit Agreement" shall mean this Deposit Agreement and all
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exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
Section 1.12 "Depositary" shall mean Citibank, N.A., a national banking
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association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.13 "Deposited Securities" shall mean Shares at any time deposited
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under this Deposit Agreement and any and all other securities, property and cash
held by the Depositary or the Custodian in respect thereof, subject, in the case
of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 hereof shall
not constitute Deposited Securities.
Section 1.14 "Dollars" and "$" shall refer to the lawful currency of the
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United States.
Section 1.15 "DTC" shall mean The Depository Trust Company, a national
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clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.16 "DTC Participant" shall mean any financial institution (or any
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nominee of such institution) having one or more participant accounts with DTC
for receiving, holding and delivering the securities and cash held in DTC.
Section 1.17 "Exchange Act" shall mean the United States Securities
------------
Exchange Act of 1934, as from time to time amended.
Section 1.18 "Foreign Currency" shall mean any currency other than Dollars.
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Section 1.19 "Holder" shall mean the person in whose name a Receipt is
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registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADSs
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evidenced by the Receipt registered in its name, such person shall be deemed to
have all requisite authority to act on behalf of the Beneficial Owners of the
ADSs evidenced by such Receipt.
Section 1.20 "National Securities Depository Limited", "NSDL" shall mean
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the National Securities Depository Limited, which provides the book-entry
settlement system for equity securities in the Republic of India, or any
successor entity thereto.
Section 1.21 "Pre-Release Transaction" shall have the meaning set forth in
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Section 5.10.
Section 1.22 "Principal Office" when used with respect to the Depositary,
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shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
---------- ------------------------------ ------
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
Section 1.24 "Registrar" shall mean the Depositary or any bank or trust
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company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary, subject to the consent of the
Company, to register issuances and transfers of Receipts as herein provided, and
shall include any co-registrar appointed by the Depositary with the consent of
the Company for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary with the consent of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall be required to give notice in writing to the Depositary
and to the Company accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
Section 1.25 "Restricted Securities" shall mean Shares, Deposited
---------------------
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, the Republic of India, or under a shareholder
agreement or the Articles of Association and Memorandum of Association of the
Company or under the regulations of any applicable securities exchange unless,
in each case, such Shares, Deposited Securities or ADSs are being sold to
persons other than an Affiliate of the Company in a transaction (i) covered by
an effective resale registration statement, or (ii) exempt from the registration
requirements of the Securities Act (as hereinafter defined), and the Shares,
Deposited Securities or ADSs are not, when held by such person(s), Restricted
Securities.
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Section 1.26 "Rupees" and "Rs." shall refer to the lawful currency of
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the Republic of India.
Section 1.27 "Securities Act" shall mean the United States Securities Act
--------------
of 1933, as from time to time amended.
Section 1.28 "Share Registrar" shall mean, as of the date hereof, the
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Company and may after the date hereof be depository institution organized under
the laws of the Republic of India appointed by the Company to carry out the
duties of registrar for the Shares or any successor as Share Registrar for such
Shares appointed by the Company.
Section 1.29 "Shares" shall mean the Company's equity shares, par value
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Rs.2 per share, validly issued and outstanding and fully paid and may, if the
Depositary so agrees after consultation with the Company, include evidence of
the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
conversion or any other event described in Section 4.11 in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the maximum extent
permitted by law, represent the successor securities resulting from such change
in par value, split-up, consolidation, exchange, conversion, reclassification or
event.
Section 1.30 "United States" shall have the meaning assigned to it in
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Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
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Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof).
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Section 2.2 Form and Transferability of Receipts.
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(a) Form. ADSs shall be evidenced by definitive Receipts which shall be
----
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. Receipts may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The Receipts
shall be substantially in the form set forth in Exhibit A to the Deposit
---------
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in the Deposit Agreement or required by law.
Receipts shall be (i) dated, (ii) signed by the manual or facsimile signature of
a duly authorized signatory of the Depositary, (iii) countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary. The Receipts
shall bear a CUSIP number that is different from any CUSIP number that was, is
or may be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not Receipts issued hereunder.
(b) Legends. The Receipts may be endorsed with or have incorporated in the
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text thereof such legends or recitals not inconsistent with the provisions of
the Deposit Agreement (i) as may be necessary to enable the Depositary or the
Company to perform their respective obligations hereunder, (ii) as may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date or
manner of issuance of the Deposited Securities or otherwise (including, without
limitation, as contemplated in Section 2.12 of the Deposit Agreement), or (iv)
as may be required by any book-entry system in which the ADSs are held.
(c) Title. Subject to the limitations contained herein and in the Receipt,
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title to a Receipt (and to each ADS evidenced thereby) shall be transferable
upon the same terms as a certificated security under the laws of the State of
New York, provided that such Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of a
Receipt (that is, the person in whose name a Receipt is registered on the books
of the Depositary) as the absolute owner thereof for all purposes. Neither the
Company nor the Depositary shall have any obligation nor be subject to any
liability under this Deposit Agreement or any Receipt to any holder of a Receipt
or any Beneficial Owner unless such holder is the registered Holder of
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such Receipt or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the registered Holder thereof.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
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acceptance of the American Depositary Shares into DTC. A single ADR in the form
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co.") and will
provide that it represents the aggregate amount of ADSs from time to time
indicated in the records of the Depositary as being issued hereunder and that
the aggregate amount of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. As such, the nominee for DTC
will be the only "Holder" of the ADR evidencing all ADSs held through DTC.
Citibank, N.A. (or such other entity as is appointed by DTC or its nominee) may
hold the "Balance Certificate" as custodian for DTC. Each Beneficial Owner of
ADSs held through DTC must rely upon the procedures of DTC and the DTC
Participants to exercise or be entitled to any rights attributable to such ADSs.
The DTC Participants shall for all purposes be deemed to have all requisite
power and authority to act on behalf of the Beneficial Owners of the ADSs held
in the DTC Participants' respective accounts in DTC and the Depositary shall for
all purposes be authorized to rely upon any instructions and information given
to it by DTC Participants on behalf of Beneficial Owners of ADSs. So long as
ADSs are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the ADR registered in the name of the nominee for DTC
will be shown on, and transfers of such ownership will be effected only through,
records maintained by (i) DTC or its nominee (with respect to the interests of
DTC Participants), or (ii) DTC Participants or their nominees (with respect to
the interests of clients of DTC Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and conditions of
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this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares may be deposited by any person (including the Depositary in its
individual capacity but subject, however, in the case of the Company or any
Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not the
transfer books of the Company or the Share Registrar, if any, are closed, by
Delivery of the Shares to the Custodian; provided that, Restricted Shares may be
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deposited only upon the terms contemplated in Section 2.12 of the Deposit
Agreement. Every deposit of Shares shall be accompanied by the following: (A)
(i) in the case of Shares represented by certificates issued in registered form,
appropriate instruments of transfer or endorsement, in a form satisfactory to
the Custodian, (ii) in the case of Shares represented by certificates in bearer
form, of the requisite coupons and talons pertaining thereto, and (iii) in the
case of shares delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person(s) stated in
such order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence
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satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in the Republic of
India, and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities, except as
contemplated by Section 2.12, provided that the Company has restricted transfer
of such Shares to comply with any ownership restrictions referred to in Section
3.5 or under applicable laws nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of the Republic of
India and any necessary approval has been granted by any governmental body in
the Republic of India, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue ADSs against evidence
of rights to receive Shares from the Company, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares furnished by the Company or any such custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
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Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
8
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or other Deposited Securities the deposit of
which would violate any provisions of the Articles of Association and Memorandum
of Association of the Company or applicable law.
Section 2.5 Execution and Delivery of Receipts. The Depositary has made
----------------------------------
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a
nominee of either on the shareholders' register maintained by or on behalf of
the Company or by the Share Registrar, if any, if registered Shares have been
deposited or if deposit is made by book-entry transfer, confirmation of such
transfer in the books of the NSDL, (iii) that all required documents and
approvals have been received, and (iv) the person(s) to whom or upon whose order
American Depositary Shares are deliverable in respect thereof and the number of
American Depositary Shares to be so delivered thereby. Such notification may be
made by letter, cable, telex, SWIFT message or, at the risk and expense of the
person making the deposit, by facsimile or other means of electronic
transmission. Upon receiving such notice from the Custodian, the Depositary,
subject to the terms and conditions of this Deposit Agreement and applicable
law, shall issue the American Depositary Shares representing the Shares so
deposited to or upon the order of the person(s) named in the notice delivered to
the Depositary and shall execute and deliver at its Principal Office Receipt(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of American Depositary Shares to which such person(s) are
entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing American Depositary Shares and
executing and delivering such Receipt(s) (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the Receipt(s). The Depositary shall only issue American Depositary Shares in
whole numbers and deliver American Depositary Receipts evidencing whole numbers
of American Depositary Shares. Nothing herein shall prohibit any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of Receipts.
----------------------------------------------
(a) Transfer. The Registrar shall promptly register the transfer of
--------
Receipts (and of the ADSs represented thereby) on the books maintained for such
purpose and the Depositary shall cancel such Receipts and execute new Receipts
evidencing the same aggregate number of ADSs as those evidenced by the Receipts
canceled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
the Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the
9
surrendered Receipts have been properly endorsed or are accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) the surrendered Receipts have been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable Receipts, of the
Deposit Agreement and of applicable law , in each case as in effect at the time
thereof.
(b) Combination & Split Up. The Registrar shall promptly register the
----------------------
split-up or combination of Receipts (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall cancel such Receipts
and execute new Receipts for the number of ADSs requested, but in the aggregate
not exceeding the number of ADSs evidenced by the Receipts canceled by the
Depositary, shall cause the Registrar to countersign such new Receipts and shall
Deliver such new Receipts to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of the Deposit Agreement and of applicable law.
(c) Co-Transfer Agents. The Depositary may, with the consent of the
------------------
Company appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes may be appointed by the
Depositary, with the consent of the Company. Each co-transfer agent appointed
under this Section 2.6 (other than the Depositary) shall give notice in writing
to the Depositary and to the Company accepting such appointment and agreeing to
be bound by the applicable terms of the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.
--------------------------------------------------------
Subject to applicable law, the Holder of ADSs shall be entitled to Delivery (at
the Custodian's designated office) to him or upon his order of the Deposited
Securities at the time represented by the ADS(s) upon satisfaction of each of
the following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and
if applicable, the Receipts evidencing such ADSs) for the purpose of withdrawal
of the Deposited Securities represented thereby, (ii) if so required by the
Depositary, the Receipts Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has
10
executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
and Exhibit B hereof) have been paid, subject, however, in each case, to the
terms and conditions of the Receipts evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association and Memorandum of
Association and of any applicable laws and the rules of the Reserve Bank of
India, and to any provisions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary
shall (i) cancel the ADSs Delivered to it (and, if applicable, the Receipts
evidencing the ADSs so Delivered), (ii) direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) direct the Custodian to Deliver (without unreasonable delay) at the
Custodian's designated office the Deposited Securities represented by the ADSs
so canceled together with any certificate or other document of title for the
Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, the
Receipts evidencing the ADSs so canceled, the Articles of Association and
Memorandum of Association of the Company, applicable laws and of the rules of
the Reserve Bank of India, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery of ADSs representing a number other than
a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction
11
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
--------------------------------------------------------
Receipts; Suspension of Delivery, Transfer, etc.
-----------------------------------------------
(a) Additional Requirements. As a condition precedent to the execution
-----------------------
and delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon, or the
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Shares or presenter of ADSs or of a
Receipt of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn) and payment of any applicable fees and charges of the Depositary
as provided in Section 5.9 and Exhibit B hereof, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof, and (iii) compliance with (A)
any laws or governmental regulations relating to the execution and delivery of
Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of the applicable Receipt, this
Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
----------------------
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the Share
Registrar, if any, are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of this Deposit Agreement or the applicable
Receipt(s) or, under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this
-----------------------
Deposit Agreement or any Receipt to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
12
Section 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
------------------
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
-----------------------------------------------------
Maintenance of Records. All Receipts surrendered to the Depositary shall be
----------------------
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate).
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
------------------------
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is
13
authorized to take any and all other actions as may be necessary (including,
without limitation, making the necessary notations on Receipts) to give effect
to the terms of this Section 2.11. The Company agrees to give timely written
notice to the Depositary if any Shares issued or to be issued are Partial
Entitlement Shares and shall assist the Depositary with the establishment of
procedures enabling the identification of Partial Entitlement Shares upon
Delivery to the Custodian.
Section 2.12 Restricted ADSs. The Depositary shall, at the request and
---------------
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to insure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions described in Section 5.10. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without
limitation, DTC and shall not in any way be fungible with the ADSs issued under
the terms hereof that are not Restricted ADSs. The Restricted ADRs and the
Restricted ADSs evidenced thereby shall be transferable only by the Holder
thereof upon delivery to the Depositary of (i) all documentation otherwise
contemplated by this Deposit Agreement and (ii) an opinion of counsel reasonably
satisfactory to the Depositary setting forth, inter alia, the conditions upon
----- ----
which the Restricted ADR presented is, and the Restricted ADSs evidenced thereby
are, transferable by the Holder thereof under applicable securities laws and the
transfer restrictions contained in the legend set forth on the Restricted ADR
presented for transfer. Except as set forth in this Section 2.12 and except as
required by applicable law, the Restricted ADRs and the Restricted ADSs
evidenced thereby shall be treated as ADRs and ADSs issued and outstanding under
the terms of the Deposit Agreement.
14
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
------------------------------------------
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depository, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Company and the
Custodian such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval
and approval for deposit, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and regulations and the terms of
this Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration on the books of the Company or of the appointed
agent of the Company for the registration and transfer of Shares) as the
Depositary or the Custodian may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or Delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8
hereof, the Delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals (if necessary and appropriate) of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval or
approval for deposit which it receives from Holders and Beneficial Owners, and
(ii) any other information or documents which the Depositary shall request and
receive from any Holder or Beneficial Owner or any person presenting Shares for
deposit or ADSs for cancellation and withdrawal. Nothing herein shall obligate
the Depositary to (i) obtain any information about Holders or Beneficial Owners
for the Company if not provided by the Holders or Beneficial Owners or otherwise
readily available from the Depository's records maintained hereunder, or (ii)
verify or vouch for the accuracy of the information about Holders or Beneficial
Owner so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. If any tax or other
-------------------------------------
governmental charge shall become payable with respect to any ADR or any
Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner remaining liable for any
15
deficiency. The Custodian may refuse the deposit of Shares and the Depositary
may refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner may be required from time to time to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
---------------------------------------------------
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor are validly
issued and outstanding, fully paid and nonassessable and that any preemptive
rights have been validly waived or exercised, and that the person making such
deposit is duly authorized so to do. Except as contemplated by Section 2.12 of
this Deposit Agreement, each such person shall also be deemed to represent that
Shares deposited by that person are not Restricted Securities, and that the
deposit of Shares or sale of Receipts by that person is not restricted, under
the Securities Act. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts or adjustments in the Depositary's
records in respect thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
------------------------------------
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with the rules and requirements of the Securities and Exchange
Board of India, Reserve Bank of India, and any stock exchange on which the
Shares are, or will be, registered, traded or listed or the Articles of
Association and Memorandum of Association of the Company, which require
notification to the Company of interests in Deposited Securities, inter alia, as
to certain acquisitions or depositions of shares (or share equivalents), the
capacity in which such Holder or Beneficial Owner owns American Depositary
Shares (and Shares as the case may be) and regarding the identity of any other
person(s) interested in such American Depositary Shares and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to forward
to the Company any such information so received by the Depositary from the
Holders or Beneficial Owners.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision in
----------------------
this Deposit Agreement or any Receipt, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law and regulations, or the Articles of Association and
Memorandum of Association of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfers of the American Depositary Shares
where such transfer may result in the total number of Shares represented by the
American Depositary Shares beneficially owned by a single Holder or Beneficial
Owner to exceed any such limits. The Company may, in its sole discretion but
subject to applicable law, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of the
limits set forth in the preceding sentence,
16
including, but not limited to, the imposition of restrictions on the transfer of
American Depositary Shares, the removal or limitation of voting rights or
mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the
Shares represented by the American Depositary Shares held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association and
Memorandum of Association of the Company.
ARTICLE IV.
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
------------------
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Shares, rights, securities or other entitlements under the terms
hereof, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can in the judgment of the Depositary (pursuant
to Section 4.8 hereof) be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (on the terms
described in Section 4.8), (ii) if applicable, establish the ADS Record Date
upon the terms described in Section 4.9, and (iii) promptly distribute promptly
the amount thus received (net of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary as provided in Exhibit B hereto and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of any payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section 4.2 Distribution in Shares. If any distribution upon any
----------------------
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9 hereof, distribute to the Holders as of the ADS Record Date in proportion to
the number of American
17
Depositary Shares held as of the ADS Record Date, additional American Depositary
Shares, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of this Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary as in Exhibit B hereto and (b)
taxes), or (ii) if additional American Depositary Shares are not so distributed,
each American Depositary Share issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary as in Exhibit B hereto and
(b) taxes). In lieu of delivering fractional American Depositary Shares, the
Depositary shall sell the number of Shares or American Depositary Shares, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation
under Section 5.7 hereof, has furnished an opinion of U.S. counsel determining
that Shares must be registered under the Securities Act or other laws in order
to be distributed to Holders (and no such registration statement has been
declared effective), the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of such (a) taxes and (b) fees and charges of,
and expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms described in Section 4.1. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of this
Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the
----------------------------------------
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall give notice thereof
to the Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined, in consultation with the Company, that
such distribution is reasonably practicable and (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the Republic of India in respect of the Shares for
which no election is made, either (X) cash upon the terms described in Section
4.1 or (Y) additional ADSs representing such additional Shares upon the terms
described in Section 4.2. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in
18
establishing such procedures to the extent necessary. If a Holder elects to
receive the proposed dividend (X) in cash, the dividend shall be distributed
upon the terms described in Section 4.1, or (Y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the
elective dividend in Shares (rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
--------------------------------------------------
(a) Distribution to ADS Holders. Whenever the Company intends to
---------------------------
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 60 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the Holders.
The Depositary shall make such rights available to Holders only if (i) the
Company shall have requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined, in consultation
with the Company, that such distribution of rights is reasonably practicable. In
the event any of the conditions set forth above are not satisfied or if the
Company requests that the rights not be made available to Holders of ADSs, the
Depositary shall proceed with the sale of the rights as contemplated in Section
4.4(b) below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the Holders
to exercise such rights (upon payment of the subscription price and of the
applicable (a) fees and charges of, and expenses incurred by, the Depositary as
provided in Exhibit B hereto and (b) taxes), and (z) to deliver ADSs upon the
valid exercise of such rights. The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not request the Depositary
--------------
to make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5.7 or determines, in consultation
with the Company, that it is not reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practical. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such
19
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
---------------
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate is required in order for the
Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
20
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
-----------------------------------------------------------
Shares.
------
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary as provided in Exhibit B hereto, and (ii) net of any
taxes withheld. The Depositary may dispose of all or a portion of the property
so distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary as contemplated in
Exhibit B hereto and (b) taxes) to the Holders as of the ADS Record Date upon
the terms of Section 4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
------------------------------------------------------------
Form. Subject to the terms of this Article IV, distributions in respect of
----
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The
21
Depositary or the Custodian shall promptly present such coupons, talons or
certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
----------
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary as soon as practicable prior to the intended
date of redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of (i) such notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7, and only
if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. The Depositary
shall instruct the Custodian to present to the Company the Deposited Securities
in respect of which redemption rights are being exercised against payment of the
applicable redemption price. Upon receipt of confirmation from the Custodian
that the redemption has taken place and that funds representing the redemption
price have been received, the Depositary shall convert, transfer, and distribute
the proceeds (net of applicable (a) fees and charges of, and the expenses
incurred by, the Depositary as provided in Exhibit B hereto, and (b) taxes),
retire ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof and
the terms set forth in Sections 4.1 and 6.2 hereof. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s) to Share(s) ratio)
upon the redemption of the Deposited Securities represented by American
Depositary Shares (subject to the terms of Section 4.8 hereof and the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes)
multiplied by the number of Deposited Securities represented by each ADS
redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or
------------------------------
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall, as soon
as reasonably practicable, convert or cause to be converted, by sale or in any
other manner that it may determine, such Foreign Currency into Dollars, and
shall promptly distribute such Dollars (net of any applicable fees contemplated
in Exhibit B hereto, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
22
If such conversion or distribution generally or with regard to a particular
Holder can be effected only with the approval or license of any government or
agency thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event, however,
shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practicable or lawful, or
if any approval or license of any governmental authority or agency thereof that
is required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion after notice to the
Company, (i) make such conversion and distribution in Dollars to the Holders for
whom such conversion, transfer and distribution is lawful and practicable, (ii)
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
-------------------------
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date (the "ADS Record Date") for the determination
of the Holders of Receipts who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consent, to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. The
Depositary shall, to the extent practicable, establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in the Republic of India. Subject to applicable law
and the provisions of Section 4.1 through 4.8 and to the other terms and
conditions of this Deposit Agreement, only the Holders of Receipts at the close
of business in New York on such ADS Record Date shall be entitled to receive
such distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the
23
Depositary at least 30 days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist, distribute to
Holders: (a) such notice of meeting or solicitation of consent or proxy, (b) a
statement that the Holders at the close of business on the ADS Record Date will
be entitled, subject to any applicable law, the provisions of this Deposit
Agreement, the Articles of Association and Memorandum of Association of the
Company and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares, and (c) a brief statement as to the manner
in which such instructions may be given. Voting instructions may be given only
in respect of a number of American Depositary Shares representing an integral
number of Shares or other Deposited Securities. Upon the timely receipt from a
Holder of American Depositary Shares as of the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of this Deposit Agreement, the Articles of Association and Memorandum
of Association of the Company and the provisions of the Deposited Securities, to
vote or cause the Custodian to vote the Shares and/or other Deposited Securities
(in person or by proxy) represented by such Holder's American Depositary Shares,
either on a show of hands, in which case the Custodian shall be instructed to
vote in accordance with instructions received from Holders of a majority of the
American Depositary Shares for which instructions have been given to the
Depositary, or on a poll, in which case the Custodian shall be instructed to
vote in accordance with the instructions received from the Holders giving
instructions.
The Company's Articles of Association and Memorandum of Association provide
that a poll may be demanded at any general meeting by a holder or holders
holding (a) at least 10% of the total Shares entitled to vote on a resolution or
(b) Shares with an aggregate paid up capital of at least Rs.50,000. As a
result, unless specifically instructed by a Holder or Holders holding (a) at
least 10% of the total Shares (represented by such Holder(s)' American
Depositary Shares) entitled vote on a resolution or (b) Shares (represented by
such Holder(s)' American Depositary Shares) with an aggregate paid up capital of
at least Rs.50,000, the Custodian, acting on behalf of the Holders upon the
instructions of the Depositary, may not join in demanding a poll. The Company's
Articles of Association and Memorandum of Association (as in effect on the date
hereof) further provide that the Chairman of the Board of the Company shall cast
the deciding vote, in the event of a tie.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of the Shares or other Deposited Securities represented by American
Depositary Shares except pursuant to and in accordance with such written
instructions from Holders. If voting instructions are received by the
Depositary from any Holder on or before the date established by the Depositary
for the receipt of such instructions, which are signed but without further
indication as to specific instructions, the Depositary will deem such Holder to
have instructed the Depositary to vote in favor of the items set forth in such
instructions. Shares or other Deposited Securities represented by American
Depositary Shares
24
for which no specific voting instructions are received by the Depositary from
the Holder shall not be voted.
Notwithstanding anything else contained in this Deposit Agreement, the
Depositary shall not have any obligation to take any action with respect to any
meeting, or solicitation of consents or proxies, of holders of Shares or other
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Shares or other Deposited Securities and to deliver to the Depositary an opinion
of U.S. counsel addressing any actions requested to be taken if so requested by
the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
--------------------------------------
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. The Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of an opinion of counsel to the
Company reasonably satisfactory to the Depositary that such distributions are
not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of Company's counsel reasonably satisfactory to the Depositary that such
action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary as provided
in Exhibit B hereto and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1. The Depositary shall not be
25
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Holders in general or to any Holder in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such securities.
Section 4.12 Available Information. The Company is subject to the
---------------------
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X.
00000.
Section 4.13 Reports. The Depositary shall make available for inspection
-------
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
---------------
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15 List of Restricted Securities Owners. Upon each issuance by
------------------------------------
the Company of any securities that are Restricted Securities, the Company shall
provide the Depositary a list setting forth, to the actual knowledge of the
Company, those persons or entities who beneficially acquired Restricted
Securities. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder (except as contemplated by Section 2.12 hereof). The Depositary may
rely on such a list or update but shall not be liable for any action or omission
made in reliance thereon.
Section 4.16 Taxation. The Depositary will, and will instruct the
--------
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information
26
or documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Holders and Beneficial Owners shall indemnify the Depositary, the Company,
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis non-U.S. tax
paid against such Holder's or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
shall not incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the American
Depositary Shares, including without limitation, tax consequences resulting from
the Company (or any of its subsidiaries) being treated as a "Foreign Personal
Holding Company," or as a "Passive Foreign Investment Company" (in each case as
defined in the U.S. Internal Revenue Code and the regulations issued thereunder)
or otherwise.
ARTICLE V.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
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Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of Receipts, the surrender
of Receipts for the purpose of withdrawal of Deposited Securities in accordance
with the provisions of this Deposit Agreement.
27
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, upon the written
consent of the Company, appoint a Registrar or one or more co-registrars for
registration of Receipts and transfers, combinations and split-ups, and to
countersign such Receipts in accordance with any requirements of such exchanges
or systems. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the written consent of the Company.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
-----------
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability to any Holder or Beneficial Owner
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of this
Deposit Agreement, by reason of any provision of any present or future law or
regulation of the United States, the Republic of India or any other country, or
of any other governmental authority or regulatory authority or stock exchange,
or on account of the possible criminal or civil penalties or restraint, or by
reason of any provision, present or future of the Articles of Association and
Memorandum of Association of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association and Memorandum of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
28
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
----------------
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be subject
to any liability under this Deposit Agreement or the Receipts to Holders or
Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement. The Depositary shall not incur any liability for any failure
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
--------------------
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
29
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
-------------
Citibank, N.A. - Mumbai Branch as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Securities and no other Custodian has previously been
appointed hereunder, the Depositary shall promptly appoint a substitute
custodian that is organized under the laws of the Republic of India. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may, upon
notice to the Company, appoint an additional custodian with respect to any
Deposited Securities, or discharge the Custodian with respect to any Deposited
Securities and appoint a substitute custodian, which shall thereafter be
Custodian hereunder with respect to the Deposited Securities. Immediately upon
any such change, the
30
Depositary shall give notice thereof in writing to all Holders of Receipts, each
other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing,
and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which the
-------------------
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association and Memorandum of
Association of the Company that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual and
semi-annual reports prepared in accordance with the applicable requirements of
the Commission. The Depositary shall arrange, at the request of the Company and
at the Company's expense, to provide copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the Company's Articles
of Association and Memorandum of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
31
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
---------------------------------------
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will, at the request of the Depositary, furnish to the
Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (1) requires a registration statement under the Securities
Act to be in effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of the Republic of India counsel stating that
(1) making the transaction available to Holders and Beneficial Owners does not
violate the laws or regulations of the Republic of India and (2) all requisite
regulatory consents and approvals have been obtained in the Republic of India.
If the filing of a registration statement is required, the Depositary shall not
have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement
has been declared effective. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the Securities
Act, the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the registration
requirements of the Securities Act or (iii) direct the Depositary to take
specific measures, in each case as contemplated in this Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act. The Company agrees with the Depositary that neither the Company
nor any of its Affiliates will at any time (i) deposit any Shares or other
Deposited Securities, either upon original issuance or upon a sale of Shares or
other Deposited Securities previously issued and reacquired by the Company or by
any such Affiliate, or (ii) issue additional Shares, rights to subscribe for
such Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
---------------
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless
32
from, any direct loss, liability, tax, charge or expense of any kind whatsoever
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary under the
terms hereof due to the negligence or bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as the
case may be, (b) out of or as a result of any offering documents in respect
thereof or (c) out of acts performed or omitted (i) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and
Affiliates under the terms of this Deposit Agreement, except to the extent such
loss, liability, tax, charge or expense is due to the negligence or bad faith of
any of them, or (ii) by the Company or any of its directors, officers,
employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the indemnifying person, which consent shall
not be unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the
------------------------------
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities, as the case may be, shall
be required to pay to the Depositary the Depositary's fees and related charges
identified as payable by them respectively in the Fee Schedule attached hereto
as Exhibit B. All fees and charges so payable may, at any time and from time to
time, be changed by agreement between the Depositary and the Company, but, in
the case of fees and charges payable by Holders and Beneficial Owners, only in
the manner contemplated in Section 6.1. The Depositary shall provide, without
charge, a copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at
33
any time and from time to time be changed by agreement between the Company and
the Depositary. Unless otherwise agreed, the Depositary shall present its
statement for such expenses and fees or charges to the Company once every three
months. The charges and expenses of the Custodian are for the sole account of
the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release. Subject to the further terms and provisions of
-----------
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf and on behalf of their clients, may own and deal in any class of
securities of the Company and its Affiliates and in ADSs. In its capacity as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a "Pre-Release Transaction"). The Depositary may receive
ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under
(ii) above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
34
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
----------------------------
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit Restricted
Securities hereunder.
ARTICLE VI.
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at any time,
--------------------
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Share(s) to be traded solely in electronic book-
entry form and (ii) do not in either such case impose or increase any fees or
charges to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such American Depositary Share(s), to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
and the Receipt as amended and supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require an amendment or supplement of the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the Receipts at any time in accordance with
such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement and the Receipts in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
Section 6.2 Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate this Deposit Agreement by providing notice
of such termination to the
35
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. If 90 days shall have expired after
(i) the Depositary shall have delivered to the Company a written notice of its
election to resign, or (ii) the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4, the Depositary may terminate this Deposit Agreement by
providing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of this Deposit Agreement, the Holder of a
Receipt will, upon surrender of such Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Section 2.7 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in Section 2.7, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement with respect to the Receipts, the
Deposited Securities and the American Depositary Shares, except to account for
such net proceeds and other cash (after deducting, or charging, as the case may
be, in each case, the charges of the Depositary for the surrender of a Receipt,
any expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6
hereof.
36
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
----------------------------
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
------------
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
--------------------------------------------------------
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company shall
-------
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Xxxxxx Computer Services Limited, Xxxxxx Technology Center,
Bahadurpally Village Qutubullapur Mandal, X.X. Xxxxxxxx - 000 000 Xxxxxxxxx,
Xxxxxx Xxxxxxx, Xxxxx, Attention: the Managing Director, or to any other address
----------
which the Company may specify in writing to the Depositary, with a copy to :
Xxxxxxx X. Xxxxxxxx, Xxxxxx & Xxxxxxx, 00 Xxxxxxx Xxxxx #00-00, XXX Xxxxx 0,
Xxxxxxxxx 000000.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
37
U.S.A. Attention: ADR Department, or to any other address which the Depositary
may specify in writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Xxxxxxxxxx
Xxxxxxx, 00, Xx. Xxxxx Xxxxxx Xxxx, Xxxxx, Xxxxxx Xxxxx 400018 or to any other
address which the Custodian may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request, or (b) if a Holder shall have
designated such means of notification as an acceptable means of notification
under the terms of this Deposit Agreement, by means of electronic messaging
addressed for delivery to the e-mail address designated by the Holder for such
purpose. Notice to Holders shall be deemed to be notice to Beneficial Owners
for all purposes of this Deposit Agreement. Failure to notify a Holder or any
defect in the notification to a Holder shall not affect the sufficiency of
notification to other Holders or to the Beneficial Owners of ADSs held by such
other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box or delivered to an air courier service, without regard for the actual
receipt or time of actual receipt thereof by a Holder. The Depositary or the
Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, the Custodian or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
Delivery of a notice by means of electronic messaging shall be deemed to be
effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated e-
mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the
------------------------------
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited
38
Securities and the obligations and duties of the Company in respect of the
holders of Shares and other Deposited Securities, as such, shall be governed by
the laws of the Republic of India (or, if applicable, such other laws as may
govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone number
(000) 000-0000 as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph of
this Section 7.6. If for any reason the Agent shall cease to be available to
act as such, the Company agrees to designate a new agent in New York on the
terms and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon
the Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that
39
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
----------
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
-------------------------------------
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1)of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 Titles. All references in this Deposit Agreement to exhibits,
------
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
40
IN WITNESS WHEREOF, XXXXXX COMPUTER SERVICES LIMITED and CITIBANK, N.A.
have duly executed this Deposit Agreement as of the day and year first above set
forth and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued in
accordance with the terms hereof, or upon acquisition of any beneficial interest
therein.
XXXXXX COMPUTER SERVICES LIMITED
By: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: Vice-President Corporate Affairs
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
41
EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER:
American Depositary Shares (each
American Depositary Share representing
two (2) equity shares,
par value Rs.2 per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED EQUITY SHARES
of
XXXXXX COMPUTER SERVICES LIMITED
(a limited liability company organized under the laws of the Republic of India)
CITIBANK, N.A., a national banking association organized and existing under
the laws of the United States of America, as depositary (the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADS"), representing deposited equity shares,
each of par value of Rs.2 per share, including evidence of rights to receive
such equity shares (the "Shares") of Xxxxxx Computer Services Limited, a limited
liability company organized under the laws of the Republic of India (the
"Company"). As of the date of the Deposit Agreement (as hereinafter defined),
each ADS represents two Shares deposited under the Deposit Agreement with
(except as contemplated in Section 5.10 of the Deposit Agreement) the Custodian,
which at the date of execution of the Deposit Agreement is Citibank, N.A. -
Mumbai Branch (the "Custodian"). The ratio of American Depositary Shares to
Shares is subject to amendment as provided in the Deposit Agreement. The
Depositary's Principal Office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
A-1
(1) The Deposit Agreement. This American Depositary Receipt is one of an
---------------------
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
May 14, 2001 (as amended from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and all Holders and Beneficial Owners from
time to time of American Depositary Shares ("ADSs") evidenced by Receipts issued
thereunder, each of whom by accepting an ADS (or an interest therein) agrees to
become a party thereto and becomes bound by all the terms and conditions
thereof. The Deposit Agreement sets forth the rights and obligations of Holders
and Beneficial Owners of Receipts and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Association
and Memorandum of Association of the Company (as in effect on the date of the
signing of the Deposit Agreement) and are qualified by and subject to the
detailed provisions of the Deposit Agreement and the Articles of Association and
Memorandum of Association, to which reference is hereby made. All capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
------------------------------------------------------------
The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) to him or upon his
order of the Deposited Securities at the time represented by the ADS(s)
evidenced hereby upon satisfaction of each of the following conditions: (i) the
Holder (or a duly authorized attorney of the Holder) has duly Delivered to the
Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this Receipt) for the purpose of withdrawal of the Deposited
Securities represented thereby, (ii) if so required by the Depositary, this
Receipt has been properly endorsed in blank or is accompanied by proper
instruments of transfer in blank (including signature guarantees in accordance
with standard securities industry practice), (iii) if so required by the
Depositary, the Holder of the ADSs has executed and delivered to the Depositary
a written order directing the Depositary to cause the Deposited Securities being
withdrawn to be Delivered to or upon the written order of the person(s)
designated in such order, and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 and Exhibit B to the Deposit Agreement)
have been paid, subject, however, in each
A-2
case, to the terms and conditions of this Receipt, of the Deposit Agreement, of
the Company's Articles of Association and Memorandum of Association, and of any
applicable laws and the rules of the Reserve Bank of India, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary
(i) shall cancel the ADSs Delivered to it (and, if applicable, the Receipt
evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver (without unreasonable delay) at
the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this Receipt, of the Articles of Association and Memorandum of Association of
the Company, applicable laws and of the rules of the Reserve Bank of India, and
to the terms and conditions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of surrender of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of the Depositary of (i) any cash dividends or
cash distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder so surrendering ADSs, represented by
this Receipt, and for the account of such Holder, the Depositary shall direct
the Custodian to forward (to the extent permitted by law) any cash or other
property (other than securities) held by the Custodian in respect of the
Deposited Securities represented by such ADSs to the Depositary for delivery at
the Principal Office of the Depositary. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar shall
----------------------------------------------
promptly register the transfer of this Receipt (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
cancel this Receipt and execute new Receipts evidencing the same aggregate
number of ADSs as those evidenced by this Receipt when canceled, shall cause the
Registrar to countersign such new
A-3
Receipts and shall Deliver such new Receipts to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this Receipt has been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) this Receipt has been properly
endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this Receipt has been duly stamped (if required by the laws of the State
of New York or of the United States), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this Receipt, of the Deposit Agreement and of applicable law.
The Registrar shall promptly register the split-up or combination of this
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the number
of ADSs evidenced by this Receipt when canceled by the Depositary, shall cause
the Registrar to countersign such new Receipts and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination hereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and government charges (as are set forth in
Section 5.9 and Exhibit B to the Deposit Agreement) have been paid, subject,
however, in each case, to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
---------------------------------------------
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary and the Company
may establish consistent with the Deposit Agreement and applicable law.
A-4
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar, if any, are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Shares are listed, or under any provision of the Deposit Agreement
or this Receipt, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24) hereof. Notwithstanding any
provision of the Deposit Agreement or this Receipt to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
any time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Section I.A.(l) of the General Instructions to Form
F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
------------------------------------
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with the laws of the
Republic of India, the rules and requirements of the Securities and Exchange
Board of India, Reserve Bank of India, and of any stock exchange on which Shares
or ADSs are, or will be registered, traded or listed or the Articles of
Association and Memorandum of Association of the Company, which require
notification to the Company of interest in Deposited Securities, inter alia, as
to certain acquisition or disposition of shares (or share equivalents) the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) then or
previously interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this Receipt
----------------------
or of the Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
under applicable law and regulation, or the Articles of Association and
Memorandum of Association of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfers of ADSs where such transfer may result
in the total number of Shares represented by the ADSs owned by a single Holder
or Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of
A-5
any Holder or Beneficial Owner in excess of the limits set forth in the
preceding sentence, including but not limited to, the imposition of restrictions
on the transfer of ADSs, the removal or limitation of voting rights or a
mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the
Shares represented by the ADSs held by such Holder or Beneficial Owner in excess
of such limitations, if and to the extent such disposition is permitted by
applicable law and the Articles of Association and Memorandum of Association of
the Company.
(7) Liability of Holder for Taxes and Other Charges. If any tax or other
-----------------------------------------------
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities or ADSs, such tax, or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary. The Company, the
Custodian and/or Depositary may withhold or deduct from any distributions made
in respect of Deposited Securities and may sell for the account of Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner hereof
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver Receipts,
register the transfer, split-up or combination of ADRs and (subject to paragraph
(24) hereof) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner mat be required from time to time to indemnify the Depositary, the
Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
--------------------------------------------
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares and each certificate therefor are validly issued and
outstanding, fully paid and nonassessable and that any preemptive rights have
been validly waived or exercised, and that the person making such deposit is
duly authorized so to do. Except as contemplated by Section 2.12 of the Deposit
Agreement each such person shall also be deemed to represent that Shares
deposited by that person are not Restricted Securities, and that the deposit of
Shares or sale of Receipts by that person is not restricted, under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts or adjustments in the Depositary's
records in respect thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
-------------------------------------------------
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depositary, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Company and the
Custodian such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval
and approval for deposit, legal or beneficial ownership of ADSs and Deposited
Securities,
A-6
compliance with applicable laws and regulations and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities, to
execute such certifications and to make such representations and warranties, and
to provide such other information or documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration of Shares on the books of the Shares Registrar) as the Depositary
or the Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under the Deposit Agreement. Subject to paragraph (24) hereof and the terms of
the Deposit Agreement, the Depositary and the Registrar, as applicable, may
withhold the execution or Delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or other distribution of rights or of
the proceeds thereof or, to the extent not limited by paragraph (24) hereof, the
Delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed, or such representations are made or
such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
---------------------
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
fraction thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iv) and
(v) below);
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities, a fee not in excess of U.S. $ 5.00 per
100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or fraction thereof) held for the distribution of cash
proceeds (i.e., upon the sale of rights and other entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or fraction thereof) issued upon the exercise of
rights to purchase additional ADSs; and
(v) No Fee shall be payable upon distribution of (a) cash dividends
or (b) ADSs pursuant to stock dividends (or other free
distributions of stock) so long as the charging of such fee is
prohibited by the exchange upon which the ADSs are listed. If
charging of such fees is not prohibited, the fees specified in
(i) above shall be payable in respect of ADS distributions
pursuant to stock dividends (or other free distributions of
stock) and the
A-7
fees specified in (iii) above shall be payable in respect of
distributions of cash.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing Shares
or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
-----------------
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security
A-8
under the laws of the State of New York, provided that the Receipt has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this Receipt (that is, the person in whose name
this Receipt is registered on the books of the Depositary) as the absolute owner
thereof for all purposes. Neither the Company nor the Depositary shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
Receipt to any holder of this Receipt or any Beneficial Owner unless such holder
is the registered Holder of this Receipt or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the registered
Holder thereof.
(12) Validity of Receipt. This Receipt (and the American Depositary Shares
-------------------
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
------------------------------------------------------------
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the
A-9
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to paragraph (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By: ________________________________
Vice President
By: ____________________________________
Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-10
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
------------------------------------------------
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will (i) if at the time of receipt
thereof any amounts received in a Foreign Currency can in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars (upon the terms of the Deposit Agreement), (ii) if applicable, establish
the ADS Record Date upon the terms described in Section 4.9 of the Deposit
Agreement, and (iii) promptly distribute the amount thus received (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary as
provided in the Deposit Agreement and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary as provided in the Deposit
Agreement and (b) taxes), or (ii) if additional ADSs are not so distributed,
each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law,
A-11
thenceforth also represent rights and interest in the additional integral number
of Shares distributed upon the Deposited Securities represented thereby (net (a)
of the applicable fees and charges of, and the expenses incurred by, the
Depositary, as provided in the Deposit Agreement and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of such (a) taxes
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
record date according to paragraph (16) and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the Holder hereof
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably
A-12
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to any Holders only if (i) the Company shall have
requested that such rights be made available to Holders, (ii) the Depositary
shall have received the documentation contemplated in the Deposit Agreement, and
(iii) the Depositary shall have determined, in consultation with the Company,
that such distribution of rights is reasonably practicable. If such conditions
are not satisfied, the Depositary shall sell the rights as described below. In
the event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in the Deposit Agreement)
and establish procedures (x) to distribute rights to purchase additional ADSs
(by means of warrants or otherwise), (y) to enable the Holders to exercise the
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary as provided in the
Deposit Agreement and (b) taxes), and (z) to deliver ADSs upon the valid
exercise of such rights. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs). If (i) the Company does not
request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by the Deposit Agreement or
determines in consultation with the Company, that it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity, at such place and upon such terms
(including public or private sale) as it may deem proper. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes) upon
the terms hereof and of the Deposit Agreement. If the Depositary is unable to
make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it
may be practicable to make such rights available to Holders in general or any
Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise, or (iii) the content of any materials
forwarded to the ADR Holders on behalf of the Company in connection with the
rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate is required in order
for the Company to offer such rights or such securities to Holders and to sell
the securities represented by such rights, the Depositary will not distribute
such rights to the Holders (i) unless and until a registration statement under
the Securities Act (or other applicable law) covering such offering is in effect
or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. In the event that the
A-13
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary as
provided in the Deposit Agreement (b) taxes) to the Holders upon the terms
hereof and of the Deposit Agreement. If the Depositary is unable to sell such
property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
A-14
(15) Redemption. Upon timely receipt of notice from the Company that it
----------
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary as provided in the Deposit Agreement, and (b) taxes), retire ADSs and
cancel ADRs upon delivery of such ADSs by Holders thereof upon the terms of the
Deposit Agreement. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as may be determined by the Depositary. The redemption price per ADS shall be
the dollar equivalent of per share amount received by the Depositary (adjusted
to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of the Deposit Agreement
and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Units or Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
-------------------------
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of Receipts who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
------------------------------
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company, at the Company's expense
and provided no U.S. legal prohibitions exist) provide to Holders: (a) such
notice of meeting or
A-15
solicitation of consent or proxies, (b) a statement that the Holders as of the
ADS Record Date will be entitled, subject to any applicable law, the Company's
Articles of Association and Memorandum of Association and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADS and (c) a brief statement as to the
manner in which such instructions may be given. Upon the timely receipt of
voting instructions from a Holder of ADSs on the ADS Record Date in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law the provisions of the Deposit
Agreement, the provisions of the Articles of Association and Memorandum of
Association of the Company and the provisions of the Deposited Securities, to
vote or cause the Custodian to vote the Shares and/or other Deposited Securities
represented by ADSs held by such Holder, either on a show of hands, in which
case the Custodian shall be instructed to vote in accordance with instructions
received from Holders of a majority of the American Depositary Shares for which
instructions have been given to the Depositary, or on a poll, in which case the
Custodian shall be instructed to vote in accordance with the instructions
received from the Holders giving instructions.
The Company's Articles of Association and Memorandum of Association provide
that a poll may be demanded at any general meeting by a holder or holders
holding (a) at least 10% of the total Shares entitled to vote on a resolution or
(b) Shares with an aggregate paid up capital of at least Rs.50,000. As a result,
unless specifically instructed by a Holder or Holders holding (a) at least 10%
of the total Shares (represented by such Holder(s)' American Depositary Shares)
entitled vote on a resolution or (b) Shares (represented by such Holder(s)'
American Depositary Shares) with an aggregate paid up capital of at least
Rs.50,000, the Custodian, acting on behalf of the Holders upon the instructions
of the Depositary, may not join in demanding a poll. The Company's Articles of
Association and Memorandum of Association (as in effect on the date hereof),
further provide that the Chairman of the Board of the Company shall cast the
deciding vote, in the event of a tie.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, the Shares or other Deposited Securities represented by ADS except
pursuant to and in accordance with such written instructions from Holders. If
voting instructions are received by the Depositary from any Holder on or before
the date established by the Depositary for the receipt of such instructions,
which are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Shares or other Deposited
Securities represented by ADS for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted. Notwithstanding
anything else contained in the Deposit Agreement or this Receipt, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation or consents or proxies, of holders
A-16
of Shares or other Deposited Securities if the taking of such action would
violate U.S. laws. The Company agrees to take any and all actions reasonably
necessary to enable Holders and Beneficial Owners to exercise the voting rights
accruing to the Shares or other Deposited Securities and to deliver to the
Depositary an opinion of U.S. counsel addressing any actions requested to be
taken if so requested by the Depositary. There can be no assurance that Holders
generally or any Holder in particular will receive the notice described above
with sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
--------------------------------------
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts,
in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of Receipt contained in this Exhibit A to
the Deposit Agreement, specifically describing such new Deposited Securities or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary as provided in the Deposit Agreement and (b) taxes) for the
account of the Holders otherwise entitled to such securities and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(19) Exoneration. Neither the Depositary nor the Company shall be obligated
-----------
to do or perform any act which is inconsistent with the provisions of the
Deposit Agreement or incur any liability to any Holder or Beneficial Owner (i)
if the Depositary or the Company shall be prevented or forbidden from, or
subjected to any civil or criminal penalty or restraint on account of, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit
A-17
Agreement and this Receipt, by reason of any provision of any present or future
law or regulation of the United States, the Republic of India or any other
country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future of the Articles of
Association and Memorandum of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Articles of Association and Memorandum of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no obligation and
----------------
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
the Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party,
A-18
for allowing any rights to lapse upon the terms of the Deposit Agreement or for
the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
-------------------------------------------------------------------
Depositary. The Depositary may at any time resign as Depositary under the
----------
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment by the Company of
a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the earlier of
(i) the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor (other than as contemplated in Sections 5.8
and 5.9) of the Deposit Agreement. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly distribute
notice of its appointment to such Holders. Any corporation into or with which
the Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further
act.
(22) Amendment/Supplement. This Receipt and any provisions of the Deposit
--------------------
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until the expiration of 30 days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form
A-19
F-6 under the Securities Act or (b) the ADSs to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADS(s), to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
this Receipt at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 90 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
paragraph (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in
A-20
exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges or assessments). At any time after the expiration of six
months from the date of termination of the Deposit Agreement, the Depositary may
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the Receipts and the
Shares, the Deposited Securities and the ADSs, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
------------------------------------
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
---------------------------------------------
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf and on behalf of their clients, may own and
deal in any class of securities of the Company and its Affiliates and in ADSs.
The Depositary may issue ADSs against evidence of rights to receive Shares from
the Company, any agent of the Company or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares. In its capacity
as Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
-------- -------
that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a "Pre-
Release Transaction"). The Depositary may receive ADSs in lieu of Shares under
(i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-
Release Transaction will be (a) accompanied by or subject to a written agreement
whereby the person or entity (the "Applicant") to whom ADSs or Shares are to be
delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Shares or ADSs that are to be delivered by
the Applicant under such Pre-Release Transaction, (x)
A-21
agrees to indicate the Depositary as owner of such Shares or ADSs in its records
and to hold such Shares or ADSs in trust for the Depositary until such Shares or
ADSs are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or ADSs and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
-------- -------
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant).
A-22
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________ attorney-in-
fact to transfer said Receipt on the books of the Depositary with full power of
substitution in the premises.
Dated:
Name:________________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian, the
person executing the endorsement must give his/her
full title in such capacity and proper evidence of
authority to act in such capacity, if not on file
with the Depositary, must be forwarded with this
Receipt.
All endorsements or assignments of Receipts must
be guaranteed by a member of a Medallion Signature
Program approved by the Securities Transfer
Association, Inc.
SIGNATURE GUARANTEED
A-23
Legends
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[The Receipts issued in respect of Partial Entitlement ADSs shall bear the
following legend on the face of the Receipt: "This Receipt evidences ADSs
representing `partial entitlement' equity shares, par value Rs.2 per share
("Shares"), of Xxxxxx Computer Services Limited and as such do not entitle
the holders thereof to the same per-share entitlement as other Shares
(which are `full entitlement' Shares) issued and outstanding at such time.
The ADSs represented by this Receipt shall entitle holders to distributions
and entitlements identical to other ADSs when the Shares represented by
such ADSs become `full entitlement' Shares.]
[This certificate represents "Restricted ADSs" issued upon the terms of
Section 2.12 of the Deposit Agreement (as hereinafter defined). This
certificate and the Restricted ADSs represented hereby may not be sold or
otherwise transferred without an effective registration statement for such
securities under the Securities Act of 1933, as amended, or unless an
exemption from registration under said act is available for such sale or
transfer.
A-24
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
---------------
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or fraction Person for whom deposits are made
of Shares (excluding issuances thereof) issued. or person receiving ADSs.
contemplated by paragraphs (3)(b)
and (5) below).
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(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or fraction Person surrendering ADSs or making
Securities, property and cash thereof) surrendered. withdrawal.
against surrender of ADSs.
------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee, so long as prohibited by the Person to whom distribution is
dividend or (b) ADSs pursuant to exchange upon which the ADSs are made.
stock dividends (or other free listed. If the charging of such fee
distribution of stock). is not prohibited, the fees specified
in (1) above shall be payable in
respect of a distribution of ADSs
pursuant to stock dividends (or other
free distribution of stock) and the
fees specified in (4) below shall be
payable in respect of distributions
of cash.
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(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or fraction Person to whom distribution is
(i.e., upon sale of rights and thereof) held. made.
other entitlements).
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(5) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or fraction Person to whom distribution is
to exercise of rights to purchase thereof) issued. made.
additional ADSs.
------------------------------------------------------------------------------------------------------------------
B-1
II. Charges
-------
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
B-2
