Exhibit (c)(ii)
AMMENDMENT NO. 1 TO RULE 144A DEPOSIT AGREEMENT dated and effective
as of July 19, 1996 (the "Amendment") to the Rule 144A Deposit Agreement dated
as of July 15, 1994 (the "Deposit Agreement"), among Tata Engineering and
Locomotive Company Limited (the "Company"), Tata Sons Limited, Citibank, N.A.,
as depositary thereunder (the "Depositary"), and all Holders and Beneficial
Owners from time to time of Rule 144A Global Depositary Receipts (the
"Receipts") issued thereunder evidencing the Rule 144A GDSs.
WITNESSETH
WHEREAS, the Company, Tata Sons Limited and the Depositary executed
the Deposit Agreement for the purposes set forth therein; and
WHEREAS, the Company and the Depositary desire to amend certain
terms of the Deposit Agreement and Form of Receipt in accordance with Section
6.01 thereof and to reflect such amendments pursuant to the terms and conditions
set forth in this Amendment;
NOW, THEREFORE, the Company and the Depositary hereby amend the
Receipts and the Deposit Agreement as follows, which amendment is hereby
acknowledged by Tata Sons Limited:
I. Capitalized terms used in this Amendment but not otherwise
defined herein shall have the respective meanings assigned to them in the
Deposit Agreement.
II. Section 4.08 of the Deposit Agreement is hereby amended to read
in its entirety as follows:
SECTION 4.08. Voting of Deposited Securities. Holders and Beneficial
Owners of Rule 144A GDRs shall not be entitled to instruct the Depositary
as to voting any Deposited Securities. Each Holder and Beneficial Owner
shall be deemed, by acceptance of Rule 144A GDRS or acquisition of any
beneficial interest therein, to have authorized and directed the
Depositary to vote or cause to be voted, or to grant a proxy or power of
attorney to vote, the Deposited Securities as set forth in this Section
4.08. Except as specifically set forth in this Section 4.08, the
Depositary shall not vote or cause to be voted, or grant a proxy or power
of attorney to any person to vote, any Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or
whenever the Company solicits any proxy or consent from shareholders in
lieu of a shareholders' meeting, provided that the Depositary has received
an opinion of Indian counsel reasonably satisfactory to the Depositary
that such action is in conformity with all applicable law and regulation
and will not expose the Depositary to any liability to, or claim by, any
person, the Depositary shall vote or cause to be voted Deposited
Securities as directed in writing by Tata Sons Limited, or give a proxy or
power of attorney to vote Deposited Securities in favor of Tata Sons
Limited, at such meeting or in respect of such solicitation. Absent such a
direction from Tata Sons Limited, the Depositary shall not vote the
Deposited Securities. Tata Sons Limited shall have the right to enforce
the provisions of this Section 4.08. A valid corporate decision of the
Company will bind the Depositary, the Holders and Beneficial Owners with
respect to each party's respective interest in such Deposited Securities.
III. Section 5.10 of the Deposit Agreement is hereby amended to read
in its entirety as follows:
SECTION 5.10. Indemnification. The Company agrees to indemnify the
Depositary and each Custodian against, and hold each of them harmless
from, any liability or expense which may arise in connection with the
offer, issuance, sale, resale, withdrawal or transfer of Rule 144A GDSs,
Rule 144A GDRs or Shares
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and any offering documents relating thereto or which may arise out of acts
performed or omitted, including but not limited to any delivery by the
Depositary on behalf of the Company of information regarding the Company,
in accordance with the provisions of this Agreement and of the Rule 144A
GDRs, as the same may be amended, modified or supplemented from time to
time, in any such case, (i) by either the Depositary or any Custodian or
any of their respective agents, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by
the Company or any of its agents, except to the extent that such liability
or expense arises out of information or the omission of information
relating to the Depositary or to the Custodian, as the case may be,
furnished in a writing to the Company by the Depositary or the Custodian
expressly for use in any document relating to the Rule 144A GDSs.
The Depositary agrees to indemnify the Company and its officers,
directors and employees and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary
due to their negligence or bad faith of the Depositary.
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 and shall consult in good faith with the indemnifying
person as to the conduct of the defense of such action or claim, which
defense shall be reasonable under the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person.
The obligations set forth in this Section 5.10 shall survive the
termination of this Agreement and the succession or substitution of any
person indemnified hereby.
IV. Paragraph (14) of Exhibit B to the Deposit Agreement, the Form
of Rule 144A GDR, is hereby amended to read in its entirety as follows:
(14) Voting of Deposited Securities. Holders and Beneficial Owners
of Rule 144A GDRs shall not be entitled to instruct the Depositary as to voting
any Deposited Securities. Each Holder and Beneficial Owner shall be
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deemed, by acceptance of Rule 144A GDRs or acquisition of any beneficial
interest therein, to have authorized and directed the Depositary to vote or
cause to be voted, or to grant a proxy or power of attorney to vote, the
Deposited Securities as set forth in Section 4.08 of the Deposit Agreement.
Except as specifically set forth therein, the Depositary shall not vote or cause
to be voted, or grant a proxy or power of attorney to any person to vote, any
Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or
whenever the Company solicits any proxy or consent from shareholders in lieu of
a shareholders' meeting, provided that the Depositary has received an opinion of
Indian counsel reasonably satisfactory to the Depositary that such action is in
conformity with all applicable law and regulation and will not expose the
Depositary to any liability to, or claim by, any person, the Depositary shall
vote or cause to be voted Deposited Securities as directed in writing by Tata
Sons Limited, or give a proxy or power of attorney to vote Deposited Securities
in favor of Tata Sons Limited, at such meeting or in respect of such
solicitation. Absent such a direction from Tata Sons Limited, the Depositary
shall not vote the Deposited Securities.
V. The second paragraph of Paragraph (18) of Exhibit B to the
Deposit Agreement, the Form of Rule 144A GDR, is hereby amended to read in its
entirety as follows:
The Company agrees to indemnify the Depositary and each Custodian
against, and hold each of them harmless from, any liability or expense
which may arise in connection with the offer, issuance, sale, resale,
withdrawal or transfer of Rule 144A GDSs, Rule 144A GDRs or Shares and any
offering documents relating thereto or which may arise out of acts
performed or omitted, including but not limited to any delivery by the
Depositary on behalf of the Company of information regarding the Company,
in accordance with the provisions of the Deposit Agreement and of the Rule
144A GDRs, as the same may be amended, modified or supplemented from time
to time, in any such case, (i) by either the Depositary or any Custodian
or any of their respective agents, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by
the Company or any of its agents, except to the extent that such liability
or expense arises out of information or the omission of information
relating to the Depositary or to the Custodian, as the case may be,
furnished in a writing
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to the Company by the Depositary or the Custodian expressly for use in any
document relating to the Rule 144A GDSs.
VI. The reference to "the Deposit Agreement, dated as of July 15,
1994" in paragraph (1) of Exhibit B to the Deposit Agreement, the Form of Rule
144A GDR, is hereby amended to read "the Deposit Agreement, dated as of July 15,
1994, as amended from time to time".
VII. From and after the date hereof, the Depositary shall arrange to
have the Master Rule 144A GDR amended to reflect the changes effected by this
Amendment. All Rule 144A GDRs issued under the Deposit Agreement after the date
hereof whether upon the deposit of Shares or other Deposited Securities or upon
the transfer, combination or split-up of existing Rule 144A GDRs, shall reflect
the changes to the Form of Rule 144A GDR effected by this Amendment.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date first above set forth and all Holders and Beneficial
Owners shall become parties hereto in accordance with the terms of the Deposit
Agreement.
TATA ENGINEERING AND
LOCOMOTIVE COMPANY LIMITED
By /s/ X. X. Xxxxxxxxx
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Name: X. X. Xxxxxxxxx
Title: Director
By /s/ X. X. Xxxxxxxxxx
-----------------------
Name: X. X. Xxxxxxxxxx
Title: Vice Chairman
and Managing
Director
CITIBANK N.A.
By /s/ Xxxxx Xx
-----------------------
Name: Xxxxx Xx
Title: Vice President
Acknowledged as of the
date first above set forth.
TATA SONS LIMITED
By /s/ X. X. Xxxxxxxxx
------------------------
Name: X. X. Xxxxxxxxx
Title: Director
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