DEPOSIT AGREEMENT
Exhibit (a)
EXECUTION VERSION
by and among
SAMRUDDHI CEMENT LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
GLOBAL DEPOSITARY SHARES
ISSUED HEREUNDER
Dated as of June 4, 2010
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS
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1
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Section 1.1
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βAffiliateβ
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1
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Section 1.2
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βApplicantβ
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2
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Section 1.3
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βBeneficial Ownerβ
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2
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Section 1.4
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βCertificated GDS(s)β
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2
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Section 1.5
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βCommissionβ
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2
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Section 1.6
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βCompanyβ
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2
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Section 1.7
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βCustodianβ
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2
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Section 1.8
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βDeliverβ and βDeliveryβ
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2
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Section 1.9
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βDeposit Agreementβ
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2
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Section 1.10
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βDepositaryβ
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2
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Section 1.11
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βDeposited Securitiesβ
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2
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Section 1.12
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βDollarsβ and β$β
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3
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Section 1.13
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βDTCβ
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3
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Section 1.14
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βDTC Participantβ
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3
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Section 1.15
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βExchange Actβ
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3
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Section 1.16
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βForeign Currencyβ
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3
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Section 1.17
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βFull Entitlement GDR(s)β, βFull Entitlement GDS(s)β and βFull Entitlement Share(s)β
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3
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Section 1.18
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βGlobal Depositary Receipt(s)β, βGDR(s)β and βReceipt(s)β
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3
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Section 1.19
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βGlobal Depositary Share(s)β and βGDS(s)β
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3
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Section 1.20
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βGDS Record Dateβ
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4
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Section 1.21
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βHolder(s)β
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4
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Section 1.22
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βIndiaβ
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4
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Section 1.23
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βIndian Central Depository Systemβ
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4
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Section 1.24
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βIndian Legendβ
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4
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Section 1.25
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βIndian Stock Exchangesβ
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4
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Section 1.26
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βInitial Depositβ
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5
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Section 1.27
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βPartial Entitlement GDR(s)β, βPartial Entitlement GDS(s)β and βPartial Entitlement Share(s)β
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5
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Section 1.28
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βPartial Entitlement Legendβ
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5
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Section 1.29
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βPre-Release Transactionβ
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5
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Section 1.30
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βPrincipal Officeβ
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5
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Section 1.31
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βRegistrarβ
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5
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Section 1.32
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βRestricted Securitiesβ
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5
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Section 1.33
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βRestricted GDR(s)β, βRestricted GDS(s)β and βRestricted Sharesβ
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6
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Section 1.34
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βRupeesβ and βRs.β
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6
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Section 1.35
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βScheme of Arrangementβ
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6
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Section 1.36
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βSecurities Actβ
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6
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Section 1.37
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βShare Registrarβ
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6
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Section 1.38
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βSharesβ
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6
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Section 1.39
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βUncertificated GDS(s)β
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6
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i
Section 1.40
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βUnited Statesβ and βU.S.β
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6
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ARTICLE II
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APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
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7
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Section 2.1
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Appointment of Depositary.
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7
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Section 2.2
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Form and Transferability of GDSs.
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7
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Section 2.3
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Deposit of Shares.
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9
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Section 2.4
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Registration and Safekeeping of Deposited Securities.
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10
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Section 2.5
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Issuance of GDSs.
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10
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Section 2.6
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Transfer, Combination and Split-up of GDRs.
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11
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Section 2.7
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Surrender of GDSs and Withdrawal of Deposited Securities.
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12
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Section 2.8
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Limitations on Execution and Delivery, Transfer, etc. of GDSs; Suspension of Delivery, Transfer, etc.
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14
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Section 2.9
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Lost GDRs, etc.
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15
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Section 2.10
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Cancellation and Destruction of Surrendered GDRs; Maintenance of Records.
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15
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Section 2.11
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Escheatment.
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15
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Section 2.12
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Partial Entitlement GDSs.
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16
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Section 2.13
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Certificated/Uncertificated GDSs.
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16
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Section 2.14
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Restricted GDSs.
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18
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ARTICLE III
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CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF GDSs
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19
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Section 3.1
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Proofs, Certificates and Other Information.
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19
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Section 3.2
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Liability for Taxes and Other Charges.
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20
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Section 3.3
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Representations and Warranties on Deposit of Shares.
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20
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Section 3.4
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Compliance with Information Requests.
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21
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Section 3.5
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Ownership Restrictions.
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21
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Section 3.6
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Reporting Obligations and Regulatory Approvals.
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21
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ARTICLE IV
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THE DEPOSITED SECURITIES
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22
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Section 4.1
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Cash Distributions.
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22
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Section 4.2
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Distribution in Shares.
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22
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Section 4.3
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Elective Distributions in Cash or Shares.
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23
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Section 4.4
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Distribution of Rights to Purchase Additional GDSs.
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24
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Section 4.5
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Distributions Other Than Cash, Shares or Rights to Purchase Shares.
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25
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Section 4.6
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Distributions with Respect to Deposited Securities in Bearer Form.
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26
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Section 4.7
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Repurchase.
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26
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Section 4.8
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Conversion of Foreign Currency.
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27
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Section 4.9
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Fixing of GDS Record Date.
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28
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ii
Section 4.10
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Voting of Deposited Securities.
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28
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Section 4.11
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Changes Affecting Deposited Securities.
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29
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Section 4.12
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Available Information.
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30
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Section 4.13
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Reports.
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30
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Section 4.14
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List of Holders.
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30
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Section 4.15
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Taxation.
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30
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ARTICLE V
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THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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32
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Section 5.1
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Maintenance of Office and Transfer Books by the Registrar.
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32
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Section 5.2
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Exoneration.
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32
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Section 5.3
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Standard of Care.
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33
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Section 5.4
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Resignation and Removal of the Depositary; Appointment of Successor Depositary.
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34
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Section 5.5
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The Custodian.
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34
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Section 5.6
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Notices and Reports.
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35
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Section 5.7
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Issuance of Additional Shares, GDSs etc.
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36
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Section 5.8
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Indemnification.
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37
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Section 5.9
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Fees and Charges of Depositary.
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38
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Section 5.10
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Pre-Release Transactions.
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39
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Section 5.11
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Restricted Securities Owners.
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39
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ARTICLE VI
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AMENDMENT AND TERMINATION
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39
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Section 6.1
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Amendment/Supplement.
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39
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Section 6.2
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Termination.
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40
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ARTICLE VII
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MISCELLANEOUS
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41
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Section 7.1
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Counterparts.
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41
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Section 7.2
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No Third Party Beneficiaries.
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41
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Section 7.3
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Severability.
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42
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Section 7.4
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Holders and Beneficial Owners as Parties; Binding Effect.
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42
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Section 7.5
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Notices.
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42
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Section 7.6
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Governing Law and Jurisdiction.
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43
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Section 7.7
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Assignment.
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44
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Section 7.8
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Compliance with U.S. Securities Laws.
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45
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Section 7.9
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Indian Law References.
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45
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Section 7.10
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Titles and References.
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45
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EXHIBITS
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Form of GDR.
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A-1
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Fee Schedule.
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B-1
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iii
DEPOSIT AGREEMENT, dated as of June 4, 2010, by and among (i) SAMRUDDHI CEMENT LIMITED, a company organized under the laws of India, and its successors (the βCompanyβ), (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 βDepositaryβ), and (iii) all Holders and Beneficial Owners of Global Depositary Shares issued hereunder (all such capitalized terms as hereinafter defined).
WHEREAS, the Company desires to establish with the Depositary a GDR facility to provide for the deposit of the Shares (as hereinafter defined) and the creation of Global Depositary Shares representing the Shares so deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such GDR facility upon the terms set forth in the Deposit Agreement (as hereinafter defined); and
WHEREAS, any Global Depositary Receipts issued pursuant to the terms of the Deposit Agreement are to be substantially in the form of Exhibit A attached hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in the Deposit Agreement; and
WHEREAS, the Shares are to be listed for trading on The Bombay Stock Exchange Limited (the βBSEβ) and the National Stock Exchange of India Limited (the βNSEβ) (collectively, the βIndian Stock Exchangesβ); and
WHEREAS, the Board of Directors of the Company (or an authorized committee thereof) has duly approved the establishment of a GDR facility upon the terms set forth in the Deposit Agreement, the execution and delivery of the Deposit Agreement on behalf of the Company, and the actions of the Company and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
All capitalized terms used, but not otherwise defined, herein shall have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 βAffiliateβ shall have the meaning assigned to such term by the Commission (as hereinafter defined) under Regulation C promulgated under the Securities Act (as hereinafter defined), or under any successor regulation thereto.
1
Section 1.2 βApplicantβ shall have the meaning given to such term in Section 5.10.
Section 1.3 βBeneficial Ownerβ shall mean, as to any GDS, any person or entity having a beneficial interest deriving from the ownership of such GDS. A Beneficial Owner of GDSs may or may not be the Holder of such GDSs. 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 GDSs owned by such Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed to be the Beneficial Owner of all the GDSs registered in his/her/its name.
Section 1.4 βCertificated GDS(s)β shall have the meaning set forth in Section 2.13.
Section 1.5 βCommissionβ shall mean the Securities and Exchange Commission of the United States or any successor governmental agency thereto in the United States.
Section 1.6 βCompanyβ shall mean Samruddhi Cement Limited, a company incorporated and existing under the laws of India, and its successors.
Section 1.7 βCustodianβ shall mean (i) as of the date hereof, Citibank, N.A., Mumbai Branch, having its principal office at 81 Xx. Xxxxx Xxxxxx Road, Worli, Mumbai 400 018, as the custodian for the purposes of the Deposit Agreement, (ii) Citibank, N.A., acting as custodian of Deposited Securities pursuant to the Deposit Agreement, and (iii) 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 βCustodianβ shall mean any Custodian individually or all Custodians collectively, as the context requires.
Section 1.8 βDeliverβ and βDeliveryβ shall mean (x) when used in respect of Shares and other Deposited Securities, either (i) the physical delivery of the certificate(s) representing such securities, or (ii) the book-entry transfer and recordation of such securities on the books of the Share Registrar (as hereinafter defined) or in the book-entry settlement of the Indian Central Depository System, and (y) when used in respect of GDSs, either (i) the physical delivery of GDR(s) evidencing the GDSs, or (ii) the book-entry transfer and recordation of GDSs on the books of the Depositary or any book-entry settlement system in which the GDSs are settlement-eligible.
Section 1.9 βDeposit Agreementβ shall mean this Deposit Agreement and all exhibits hereto, as the same may from time to time be amended and supplemented from time to time in accordance with the terms of the Deposit Agreement.
Section 1.10 βDepositaryβ shall mean Citibank, N.A., a national banking association organized under the laws of the United States, in its capacity as depositary under the terms of the Deposit Agreement, and any successor depositary hereunder.
Section 1.11 βDeposited Securitiesβ shall mean Shares at any time deposited under the 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 shall not constitute Deposited Securities.
2
Section 1.12 βDollarsβ and β$β shall refer to the lawful currency of the United States.
Section 1.13 βDTCβ shall mean The Depository Trust Company, a national 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 1.14 βDTC Participantβ shall mean any financial institution (or any nominee of such institution) having one or more participant accounts with DTC for receiving, holding and delivering the securities and cash held in DTC. A DTC Participant may or may not be a Beneficial Owner. If a DTC Participant is not the Beneficial Owner of the GDSs credited to its account at DTC, or of the GDSs in respect of which the DTC Participant is otherwise acting, such DTC Participant shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owner(s) of the GDSs credited to its account at DTC or in respect of which the DTC Participant is so acting.
Section 1.15 βExchange Actβ shall mean the United States Securities Exchange Act of 1934, as amended from time to time.
Section 1.16 βForeign Currencyβ shall mean any currency other than Dollars.
Section 1.17 βFull Entitlement GDR(s)β, βFull Entitlement GDS(s)β and βFull Entitlement Share(s)β shall have the respective meanings set forth in Section 2.12.
Section 1.18 βGlobal Depositary Receipt(s)β, βGDR(s)β and βReceipt(s)β shall mean the certificate(s) issued by the Depositary to evidence the Global Depositary Shares issued under the terms of the Deposit Agreement in the form of Certificated GDS(s) (as hereinafter defined), as such GDRs may be amended from time to time in accordance with the provisions of the Deposit Agreement. A GDR may evidence any number of GDSs and may, in the case of GDSs held through a central depository such as DTC, be in the form of a βBalance Certificate.β
Section 1.19 βGlobal Depositary Share(s)β and βGDS(s)β shall mean the rights and interests in the Deposited Securities (as hereinafter defined) granted to the Holders and Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued as Certificated GDS(s) (as hereinafter defined), the GDR(s) issued to evidence such GDSs. GDS(s) may be issued under the terms of the Deposit Agreement in the form of (a) Certificated GDS(s) (as hereinafter defined), in which case the GDS(s) are evidenced by GDR(s), or (b) Uncertificated GDS(s) (as hereinafter defined), in which case the GDS(s) are not evidenced by GDR(s) but are reflected on the direct registration system maintained by the Depositary for such purposes under the terms of Section 2.13. Unless otherwise specified in the Deposit Agreement or in any GDR, or unless the context otherwise requires, any reference to GDS(s) shall include Certificated GDS(s) and Uncertificated GDS(s), individually or collectively, as the context may require. Each GDS shall represent the right to receive, subject to the terms and conditions of the Deposit Agreement and the applicable GDR (if issued as a Certificated GDS), one (1) Share until there shall occur 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 GDSs are not issued, and thereafter each GDS shall represent the right to receive, subject to the terms and conditions of the Deposit Agreement and the applicable GDR (if issued as a Certificated GDS), the Deposited Securities determined in accordance with the terms of such Sections.
3
Section 1.20 βGDS Record Dateβ shall have the meaning given to such term in Section 4.9.
Section 1.21 βHolder(s)β shall mean the person(s) in whose name the GDSs are 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 GDS(s) registered in its name, such person shall be deemed, for all purposes hereunder, to have all requisite authority to act on behalf of the Beneficial Owners of the GDSs registered in its name.
Section 1.22 βIndiaβ shall mean the Republic of India.
Section 1.23 βIndian Central Depository Systemβ shall mean The National Securities Depository Limited and the Central Depository Services (India) Limited, which provide the book-entry settlement for equity securities in India or any successor thereto.
Section 1.24 βIndian Legendβ shall mean the following statement:
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY AND THE GLOBAL DEPOSITARY SHARES EVIDENCED HEREBY MAY NOT AT ANY TIME BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY TO ANY PERSON IN INDIA OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A RESIDENT OF INDIA, EXCEPT TO INDIAN MUTUAL FUNDS REGISTERED WITH THE SECURITIES AND EXCHANGE BOARD OF INDIA.
AFTER THE INITIAL DEPOSIT OF SHARES INTO THE GDR FACILITY BY THE COMPANY, THE HOLDER HEREOF WILL NOT BE ENTITLED TO WITHDRAW THE DEPOSITED SECURITIES REPRESENTED BY THE GDSs EVIDENCED HEREBY UNTIL THE SHARES DEPOSITED IN SUCH INITIAL DEPOSIT ARE LISTED ON THE NATIONAL STOCK EXCHANGE OF INDIA LIMITED OR THE BOMBAY STOCK EXCHANGE LIMITED.
Section 1.25 βIndian Stock Exchangesβ shall mean the BSE, the NSE, and any other stock exchange(s) in India on which the Deposited Securities may be listed from time to time.
4
Section 1.26 βInitial Depositβ shall mean the initial deposit of Shares by the Company in connection with the de-merger of the cement business of Grasim Industries Limited ("Grasim") into the Company pursuant to the Scheme of Arrangement.
Section 1.27 βPartial Entitlement GDR(s)β, βPartial Entitlement GDS(s)β and βPartial Entitlement Share(s)β shall have the respective meanings set forth in Section 2.12.
Section 1.28 βPartial Entitlement Legendβ shall mean the following statement:
THIS GDR EVIDENCES GLOBAL DEPOSITARY SHARES REPRESENTING "PARTIAL ENTITLEMENT" EQUITY SHARES OF SAMRUDDHI CEMENT LIMITED AND AS SUCH DO NOT ENTITLE THE HOLDERS THEREOF TO THE SAME PER SHARE ENTITLEMENT AS OTHER EQUITY SHARES (WHICH ARE "FULL ENTITLEMENT" EQUITY SHARES) ISSUED AND OUSTANDING AT SUCH TIME AS THIS RECEIPT IS ISSUED. THE GLOBAL DEPOSITARY SHARES REPRESENTED BY THIS GDR SHALL ENTITLE HOLDERS TO DISTRIBUTIONS AND ENTITLEMENTS IDENTICAL TO OTHER GLOBAL DEPOSITARY SHARES WHEN THE EQUITY SHARES REPRESENTED BY SUCH GLOBAL DEPOSITARY SHARES BECOME "FULL ENTITLEMENT" EQUITY SHARES.
Section 1.29 βPre-Release Transactionβ shall have the meaning set forth in Section 5.10.
Section 1.30 βPrincipal Officeβ shall mean, when used with respect to the Depositary, the principal office of the Depositary at which at any particular time its depositary receipts business shall be administered, which, at the date of the Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
Section 1.31 βRegistrarβ shall mean the Depositary or any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register issuances, transfers and cancellations of GDSs as herein provided, and shall include any co-registrar appointed by the Depositary for such purposes. Registrars (other than the Depositary) may be removed and substitutes appointed by the Depositary. Each Registrar (other than the Depositary) appointed pursuant to the Deposit Agreement shall be required to give notice in writing to the Depositary accepting such appointment and agreeing to be bound by the applicable terms of the Deposit Agreement.
Section 1.32 βRestricted Securitiesβ shall mean Shares, Deposited Securities or GDSs 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 Memorandum and Articles of Association of the Company or under the regulations of an applicable securities exchange unless, in each case, such Shares, Deposited Securities or GDSs are being transferred or sold to persons other than an Affiliate of the Company in a transaction (a) covered by an effective resale registration statement, or (b) exempt from the registration requirements of the Securities Act (as hereinafter defined), and the Shares, Deposited Securities or GDSs are not, when held by such person(s), Restricted Securities.
5
Section 1.33 βRestricted GDR(s)β, βRestricted GDS(s)β and βRestricted Sharesβ shall have the respective meanings set forth in Section 2.14.
Section 1.34 βRupeesβ and βRs.β shall refer to the lawful currency of the Republic of India.
Section 1.35 βScheme of Arrangementβ shall mean the Scheme of Arrangement among the Company and Grasim Industries Limited and their respective shareholders and creditors under Sections 391-394 of the Indian Companies Act, 1956, as approved by the shareholders of each such company on November 2, 2009 and January 4, 2010 respectively and inter alia to be approved by the relevant high courts in India prior to it becoming effective.
Section 1.36 βSecurities Actβ shall mean the United States Securities Act of 1933, as amended from time to time.
Section 1.37 βShare Registrarβ shall mean Sharepro Services (India) Private Limited or any other institution organized under the laws of the Republic of India appointed by the Company to carry out the duties of registrar for the Shares, and any successor thereto.
Section 1.38 βSharesβ shall mean the Companyβs equity shares, par value Rs. 5 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, exchange, conversion or any other event described in Section 4.11 in respect of the Shares of the Company, the term βSharesβ shall thereafter, to the maximum extent permitted by law, represent the successor securities resulting from such event.
Section 1.39 βUncertificated GDS(s)β shall have the meaning set forth in Section 2.13.
Section 1.40 βUnited Statesβ and βU.S.β shall have the meaning assigned to it in Regulation S as promulgated by the Commission under the Securities Act.
6
ARTICLE II
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
7
(c) Title. Subject to the limitations contained herein and in the GDR, title to a GDR (and to each Certificated GDS evidenced thereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated GDSs, such GDR 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 GDS (that is, the person in whose name a GDS is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Deposit Agreement or any GDR to any holder or any Beneficial Owner unless, in the case of a holder of GDSs, such holder is the Holder registered on the books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Ownerβs representative, is the Holder registered on the books of the Depositary.
8
9
Without limiting any other provision of the 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 2.14) nor (b) any fractional Shares or fractional Deposited Securities nor (c) a number of Shares or Deposited Securities which upon application of the GDS to Shares ratio would give rise to fractional GDSs. No Shares 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 India and any necessary approval has been granted by any applicable governmental body in India, if any. In particular, and without limiting the generality of the foregoing, the Depositary agrees to comply, and will cause the Custodian to comply, with the numerical limitations and other applicable conditions set forth in the Operative Guidelines for the Limited Two-Way Fungibility of GDRs under the βIssue of Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993," as amended, issued by the Indian Ministry of Finance. The Depositary may issue GDSs 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.
Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement (A) any Shares or other securities required to be registered under the provisions of the Securities Act, unless (i) a registration statement is in effect as to such Shares or other securities or (ii) the deposit is made upon terms contemplated in Section 2.14, or (B) any Shares or other securities the deposit of which would violate any provisions of the Memorandum and Articles of Association of the Company. For purposes of the foregoing sentence, the Depositary shall be entitled to rely upon representations and warranties made or deemed made pursuant to the Deposit Agreement and shall not be required to make any further investigation. The Depositary will comply with written instructions of the Company (received by the Depositary reasonably in advance) not to accept for deposit hereunder any Shares identified in such instructions at such times and under such circumstances as may reasonably be specified in such instructions in order to facilitate the Company's compliance with the ownership restrictions under Section 3.5 and compliance with any applicable laws, including, without limitation, the securities laws of the United States.
The Depositary shall not accept for deposit Shares or other securities in a manner or place other than as specified in the Deposit Agreement without the consent of the Company.
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(a) Transfer. The Registrar shall promptly register the transfer of GDRs (and of the GDSs represented thereby) on the books maintained for such purpose and the Depositary shall promptly (x) cancel such GDRs and execute new GDRs evidencing the same aggregate number of GDSs as those evidenced by the GDRs canceled by the Depositary, (y) cause the Registrar to countersign such new GDRs and (z) Deliver such new GDRs to or upon the order of the person entitled thereto, if each of the following conditions has been satisfied: (i) the GDRs 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 surrendered GDRs 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 GDRs 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 GDRs, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof, and provided, however, that the Registrar shall refuse to register any transfer of GDSs if the Registrar has actual knowledge that such registration would cause the total number of Shares represented by GDSs owned by any Beneficial Owner to exceed any limit under applicable law with respect to which the Company has notified the Depositary in writing.
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The Depositary shall restrict the withdrawal of designated Deposited Securities whenever it is notified in writing by the Company that such withdrawal would result in a breach of ownership restrictions under applicable Indian law, subject, however, to Section 2.8(c) of the Deposit Agreement. Certificates for withdrawn Deposited Securities may contain such legends, and the withdrawn Deposited Securities may be subject to such transfer restrictions or certifications, as the Company or the Depositary may from time to time determine to be necessary for compliance with applicable laws.
The Company has informed the Depositary that, under Indian laws, practices and procedures as in effect as of the date hereof, no Shares may be withdrawn upon presentation of GDSs (and if applicable, the GDRs evidencing such GDSs) for cancellation under this Section 2.7 until (i) the Company has delivered written confirmation that the number of Shares requested for withdrawal have been listed for trading on the Indian Stock Exchanges (such Shares, the βListed Sharesβ) to (x) the Depositary and the Custodian, in the case of Shares deposited in the Initial Deposit, or (y) the Custodian, in the case of Shares deposited subsequently, including upon the conversion of bonds of the Company, (ii) the Listed Shares have been de-materialized (such Shares, the βDe-Materialized Shares,β and Shares that are both Listed Shares and De-Materialized Shares, hereinafter referred to as the βFinal Sharesβ), and (iii) an equivalent number of Final Shares are available at the facilities of the Custodian. The parties hereto acknowledge and agree that (a) the Depositary will deliver Shares represented by GDSs (and if applicable, the GDRs representing such GDSs) presented for cancellation pursuant to this Section 2.7 only to the extent of the number of Final Shares then on deposit with the Custodian, (b) the Depositary will process presentations of GDSs for withdrawal of Final Shares under this Section 2.7 on a first come, first served basis, (c) the Depositary will complete requests for cancellation of GDSs and withdrawal of the Shares represented thereby only to the extent of the number of Final Shares at such time on deposit with the Custodian, (d) the Depositary will refuse to complete a request for cancellation of GDSs and withdrawal of Shares to the extent the number of Shares requested for withdrawal exceeds the number of Final Shares at such time deposited with the Custodian, and (e) the Depositary reserves the right to suspend withdrawals of Shares under this Section 2.7 until such time as the requisite number of Final Shares are deposited with the Custodian. The Company agrees to deliver to the Depositary and/or the Custodian, as applicable, written confirmation of the number of Listed Shares deposited with the Custodian under this Deposit Agreement promptly upon the receipt of confirmation of listing from the Indian Stock Exchanges of such Shares. The Depositary will instruct the Custodian to deliver to the Depositary confirmation of the satisfaction of all the requirements for the de-materialization of the Listed Shares as soon as practicable upon the de-materialization of such Listed Shares.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the GDSs Delivered to it (and, if applicable, the GDRs evidencing the GDSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the GDSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the GDSs 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 the GDRs evidencing the GDSs so cancelled, of the Memorandum and Articles of Association of the Company, of any applicable laws and of the rules of the Indian Central Depository System, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
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The Depositary shall not accept for surrender GDSs representing less than one (1) Share. In the case of the Delivery to it of GDSs 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 GDSs the number of GDSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the GDSs 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 GDSs.
Notwithstanding anything else contained in any GDR 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 GDSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering GDSs, 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 GDSs 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.
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Section 2.8
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Section 2.13 Certificated/Uncertificated GDSs. Notwithstanding any other provision of the Deposit Agreement, the Depositary may, at any time and from time to time, issue GDSs that are not evidenced by GDRs (such GDSs, the βUncertificated GDS(s)β and the GDS(s) evidenced by GDR(s), the βCertificated GDS(s)β). When issuing and maintaining Uncertificated GDS(s) under the Deposit Agreement, the Depositary shall at all times be subject to (i) the standards applicable to registrars and transfer agents maintaining direct registration systems for equity securities in New York and issuing uncertificated securities under New York law, and (ii) the terms of New York law applicable to uncertificated equity securities. Uncertificated GDSs shall not be represented by any instruments but shall be evidenced by registration in the books of the Depositary maintained for such purpose. Holders of Uncertificated GDSs, that are not subject to any registered pledges, liens, restrictions or adverse claims of which the Depositary has notice at such time, shall at all times have the right to exchange the Uncertificated GDS(s) for Certificated GDS(s) of the same type and class, subject in each case to applicable laws and any rules and regulations
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the Depositary may have established in respect of the Uncertificated GDSs. Holders of Certificated GDSs shall, if the Depositary maintains a direct registration system for the GDSs, have the right to exchange the Certificated GDSs for Uncertificated GDSs upon (i) the due surrender of the Certificated GDS(s) to the Depositary for such purpose and (ii) the presentation of a written request to that effect to the Depositary, subject in each case to (a) all liens and restrictions noted on the GDR evidencing the Certificated GDS(s) and all adverse claims of which the Depositary then has notice, (b) the terms of the Deposit Agreement and the rules and regulations that the Depositary may establish for such purposes hereunder, (c) applicable law, and (d) payment of the Depositary fees and expenses applicable to such exchange of Certificated GDS(s) for Uncertificated GDS(s). Uncertificated GDSs shall in all respects be identical to Certificated GDS(s) of the same type and class, except that (i) no GDR(s) shall be, or shall need to be, issued to evidence Uncertificated GDS(s), (ii) Uncertificated GDS(s) shall, subject to the terms of the Deposit Agreement, be transferable upon the same terms and conditions as uncertificated securities under New York law, (iii) the ownership of Uncertificated GDS(s) shall be recorded on the books of the Depositary maintained for such purpose and evidence of such ownership shall be reflected in periodic statements provided by the Depositary to the Holder(s) in accordance with applicable New York law, (iv) the Depositary may from time to time, upon notice to the Holders of Uncertificated GDSs affected thereby, establish rules and regulations, and amend or supplement existing rules and regulations, as may be deemed reasonably necessary to maintain Uncertificated GDS(s) on behalf of Holders, provided that (a) such rules and regulations do not conflict with the terms of the Deposit Agreement and applicable law, and (b) the terms of such rules and regulations are readily available to Holders upon request, (v) the Uncertificated GDS(s) 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 such Uncertificated GDS(s) is/are registered on the books of the Depositary maintained for such purpose, (vi) the Depositary may, in connection with any deposit of Shares resulting in the issuance of Uncertificated GDSs and with any transfer, pledge, release and cancellation of Uncertificated GDSs, require the prior receipt of such documentation as the Depositary may deem reasonably appropriate, and (vii) upon termination of the Deposit Agreement, the Depositary shall not require Holders of Uncertificated GDSs to affirmatively instruct the Depositary before remitting proceeds from the sale of the Deposited Securities represented by such Holders' Uncertificated GDSs under the terms of Section 6.2 of the Deposit Agreement. When issuing GDSs under the terms of the Deposit Agreement, including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue Uncertificated GDSs rather than Certificated GDSs, unless otherwise specifically instructed by the applicable Holder to issue Certificated GDSs. All provisions and conditions of the Deposit Agreement shall apply to Uncertificated GDSs to the same extent as to Certificated GDSs, except as contemplated by this Section 2.13. The Depositary is authorized and directed to take any and all actions and establish any and all procedures deemed reasonably necessary to give effect to the terms of this Section 2.13. Any references in the Deposit Agreement or any GDR(s) to the terms βGlobal Depositary Share(s)β or βGDS(s)β shall, unless the context otherwise requires, include Certificated GDS(s) and Uncertificated GDS(s). Except as set forth in this Section 2.13 and except as required by applicable law, the Uncertificated GDSs shall be treated as GDSs issued and outstanding under the terms of the Deposit Agreement. In the event that, in determining the rights and obligations of parties hereto with respect to any Uncertificated GDSs, any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13, the terms and conditions set forth in this Section 2.13 shall be controlling and shall govern the rights and obligations of the parties to the Deposit Agreement pertaining to the Uncertificated GDSs.
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If the Restricted GDRs, the Restricted GDSs and the Restricted Shares cease to be Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel reasonably satisfactory to the Depositary and the Company setting forth, inter alia, that the Restricted GDRs, the Restricted GDSs and the Restricted Shares are not as of such time Restricted Securities, and (y) instructions from the Company to remove the restrictions applicable to the Restricted GDRs, the Restricted GDSs and the Restricted Shares, shall (i) eliminate the distinctions and separations that may have been established between the applicable Restricted Shares held on deposit under this Section 2.14 and the other Shares held on deposit under the terms of the Deposit Agreement that are not Restricted Shares, (ii) treat the newly unrestricted GDRs and GDSs on the same terms as, and fully fungible with, the other GDRs and GDSs issued and outstanding under the terms of the Deposit Agreement that are not Restricted GDRs or Restricted GDSs, (iii) take all actions necessary to remove any distinctions, limitations and restrictions previously existing under this Section 2.14 between the applicable Restricted GDRs and Restricted GDSs, respectively, on the one hand, and the other GDRs and GDSs that are not Restricted GDRs or Restricted GDSs, respectively, on the other hand, including, without limitation, by making the newly-unrestricted GDSs eligible for Pre-Release Transactions and for inclusion in the applicable book-entry settlement systems.
ARTICLE III
AND BENEFICIAL OWNERS OF GDSs
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ARTICLE IV
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The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or 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 may be 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 GDSs 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.
(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 GDSs. Upon receipt of a notice indicating that the Company wishes such distribution be made to Holders of GDSs, 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.
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(b) Upon receipt of satisfactory documentation and the request of the Company to distribute property to Holders of GDSs 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 GDS Record Date, in proportion to the number of GDSs 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.
(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 and (b) taxes) to the Holders as of the GDS 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 for the account of the Holders in any way it deems reasonably practicable under the circumstances.
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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.
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Section 4.9 Fixing of GDS 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 GDS, 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, upon prior notification to the Company, fix a record date (the βGDS Record Dateβ) for the determination of the Holders of GDS(s) 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 GDS. The Depositary shall make reasonable efforts to establish the GDS Record Date as closely as possible to the applicable record date for the Deposited Securities (if any) set by the Company in India. Subject to applicable law and the provisions of Section 4.1 through 4.8 and to the other terms and conditions of the Deposit Agreement, only the Holders of GDSs at the close of business in New York on such GDS Record Date shall be entitled to receive such distribution, to give such voting instructions, to receive such notice or solicitation, or otherwise take action.
HOLDERS OF GDSs WILL NOT BE ENTITLED TO ANY VOTING RIGHTS IN RELATION TO THE DEPOSITED SECURITIES REPRESENTED BY GDSs. THE DEPOSITARY WILL NOT EXERCISE ANY VOTING RIGHTS IN RELATION TO THE DEPOSITED SECURITIES UNLESS REQUIRED TO DO SO UNDER APPLICABLE LAW. IN SUCH CASE, THE DEPOSITARY SHALL EXERCISE THE VOTING RIGHTS AT THE DIRECTION OF THE COMPANY AS SET FORTH BELOW.
As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall, if requested in writing by the Company, fix the GDS Record Date for determining the Holders entitled to receive information as to such meeting or solicitation of consent or proxy in accordance with Section 4.9 and shall distribute to the Holders as of the GDS Record Date: (a) such notice of meeting or solicitation of consent or proxy, and (b) a statement that the Holders of GDSs may not vote the Shares or other Deposited Securities represented by their GDSs.
Notwithstanding anything contained in the Deposit Agreement or any GDR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of any stock exchange on which the GDSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicize to Holders, instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
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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 Deposited Securities represented by GDSs except as required by Indian law. In the event that under applicable Indian law the Depositary is obliged to exercise any such voting rights, then the Depositary shall (at the written direction of the Company's Board of Directors but subject to being advised by the Depositary's legal counsel that such action is in conformity with applicable laws):
(a) vote the Deposited Securities according to instructions given in writing by the Board of Directors of the Company; or
(b) give proxies in respect thereof in favor of a Director of the Company nominated by the Board of Directors of the Company from time to time; or
(c) if so demanded by the Company, give an irrevocable power of attorney in favor of a Director of the Company or any other person or company nominated by the Board of Directors of the Company for the purpose in relation to the voting rights therefor to be exercised at the meetings of the Company; or
(d) vote in the same manner as those shareholders which have been designated by the Board of Directors in writing from time to time as being members of the Birla Group.
Notwithstanding anything else contained in the Deposit Agreement or any GDR, 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 Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary.
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The Company will publish the information contemplated in Rule 12g3-2(b)(2)(i) under the Exchange Act on its internet website or through an electronic information delivery system generally available to the public in the Companyβs primary trading market. As of the date hereof the Companyβs internet website is xxxx://xxx.xxxxxxxxxxx.xxx/XxxxxxxxxXxxxxx.xxx. The information so published by the Company may not be in English, except that the Company is required, in order to maintain its exemption from the Exchange Act reporting obligations pursuant to Rule 12g3-2(b), to translate such information into English to the extent contemplated in the instructions to Rule 12g3-2(b). The information so published by the Company cannot be retrieved from the Commissionβs internet website, and cannot be inspected or copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
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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 or the Custodian, as applicable. 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 of non-U.S. tax paid against such Holderβs or Beneficial Ownerβs 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 GDSs, including without limitation, tax consequences resulting from the Company (or any of its subsidiaries) being treated as a βPassive Foreign Investment Companyβ (as defined in the U.S. Internal Revenue Code and the regulations issued thereunder) or otherwise.
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ARTICLE V
Section 5.1 Maintenance of Office and Transfer Books by the Registrar. Until termination of the 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 issuance and delivery of GDSs, the acceptance for surrender of GDS(s) for the purpose of withdrawal of Deposited Securities, the registration of issuances, cancellations, transfers, combinations and split-ups of GDS(s) and, if applicable, to countersign GDRs evidencing the GDSs so issued, transferred, combined or split-up, in each case in accordance with the provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of GDSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such GDSs, provided that such inspection shall not be, to the Registrarβs knowledge, for the purpose of communicating with Holders of such GDSs 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 GDSs.
The Registrar may close the transfer books with respect to the GDSs, 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.
If any GDSs are listed on one or more stock exchanges or automated quotation systems in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registration of issuances, cancellations, transfers, combinations and split-ups of GDSs and, if applicable, to countersign GDRs evidencing the GDSs so issued, transferred, combined or split-up, 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.
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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.
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 GDSs, 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 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 GDSs, Shares or Deposited Securities, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant.
33
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary may at any time be removed by the Company by written notice of such removal, which removal shall be effective on the later 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), 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 GDSs and such other information relating to GDSs 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.
34
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.
The Company will also transmit to the Depositary English-language versions of the other notices, reports and communications which are made generally available by the Company to holders of its Shares or other Deposited Securities. The Depositary shall arrange, at the request of the Company and at the Companyβs 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 Companyβs Memorandum and Articles of Association along with, if applicable, other documents referred to in the Memorandum and Articles of Association which govern the Shares or any other Deposited Securities issued by 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 the Deposit Agreement.
35
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 GDSs at the Depositaryβs Principal Office, at the office of the Custodian and at any other designated transfer office.
36
Notwithstanding anything else contained in the Deposit Agreement, nothing in the Deposit Agreement shall be deemed to obligate the Company to file any registration statement in respect of any proposed transaction.
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 GDRs, GDSs, 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, including, but not limited to, any delivery by the Depositary on behalf of the Company of information regarding the Company in connection with the Deposit Agreement, the GDRs, the GDSs, the Shares, or any Deposited Securities, in any such case (i) by the Depositary, the Custodian or any of their respective directors, officers, employees, agents and Affiliates, 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, except to the extent that such liability or expense arises out of information relating to the Depositary or to the Custodian, as the case may be, furnished in a signed writing to the Company or its agents by the Depositary for use in any document relating to the GDSs or GDRs.
The obligations set forth in this Section shall survive the termination of the Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an βindemnified personβ) shall notify the person from whom it is seeking indemnification (the βindemnifying personβ) 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 personβs 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.
37
Depositary Fees payable upon (i) deposit of Shares against issuance of GDSs and (ii) surrender of GDSs for cancellation and withdrawal of Deposited Securities will be charged by the Depositary to the person to whom the GDSs so issued are delivered (in the case of GDS issuances) and to the person who delivers the GDSs for cancellation to the Depositary (in the case of GDS cancellations). In the case of GDSs issued by the Depositary into DTC or presented to the Depositary via DTC, the GDS issuance and cancellation fees will be payable to the Depositary by the DTC Participant(s) receiving the GDSs from the Depositary or the DTC Participant(s) surrendering the GDSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC participant(s) as in effect at the time. Depositary fees in respect of distributions and the Depositary services fee are payable to the Depositary by Holders as of the applicable GDS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable Depositary fees is deducted by the Depositary from the funds being distributed. In the case of distributions other than cash and the Depositary service fee, the Depositary will invoice the applicable Holders as of the GDS Record Date established by the Depositary. For GDSs held through DTC, the Depositary fees for distributions other than cash and the Depositary service fee are charged by the Depositary to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such fees to the Beneficial Owners for whom they hold GDSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the GDR program established pursuant to the Deposit Agreement upon such terms and conditions as the Company and the Depositary may agree in writing from time to time. The Company shall pay to the Depositary such fees and charges and reimburse the Depositary for such out-of-pocket expenses as the Depositary and the Company may agree in writing from time to time. Responsibility for payment of such charges and reimbursements may 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 the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4, such right shall extend for those fees, charges and expenses incurred prior to the effectiveness of such resignation or removal.
38
The Depositary may also set limits with respect to the number of GDSs 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).
ARTICLE VI
39
40
If any GDSs shall remain outstanding after the Termination Date, the Registrar and the Depositary shall not, after the Termination Date, have any obligation to perform any further acts under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions pertaining to Deposited Securities, (ii) sell securities and other property received in respect of Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any securities or other property, in exchange for GDSs surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be required under applicable law in connection with its role as Depositary under the Deposit Agreement.
At any time after the expiration of six months after the Termination Date, the Depositary may sell the Deposited Securities then held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of such sale, together with any other cash then held by it under the Deposit Agreement, in an un-segregated account and without liability for interest, for the pro - rata benefit of the Holders whose GDSs have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to account for such net proceeds and other cash (after deducting, or charging, as the case may be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of the Deposit Agreement. After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of GDSs outstanding as of the Termination Date shall survive the Termination Date and shall be discharged only when the applicable GDSs are presented by their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.
ARTICLE VII
41
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 personally delivered or sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts 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 Citibank, N.A., Mumbai Branch, 81 Xx. Xxxxx Xxxxxx Road, Worli, Mumbai 400 018, 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, air courier or cable, telex or facsimile transmission, confirmed by letter, addressed to such Holder at the address of such Holder as it appears on the books of the Depositary or, if such Holder shall have filed with the Depositary a 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 the 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 the 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 GDSs held by such other Holders.
42
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 any Holder, the Custodian, the Depositary, or the Company, notwithstanding that such cable, telex or facsimile transmission shall not be subsequently confirmed by letter.
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 senderβs 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.
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 the 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 for a period of one year CT Corporation System (the βAgentβ) now at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent to receive on its behalf 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, and the Company agrees to renew such appointment as necessary to maintain such appointment throughout the term of the Deposit Agreement. 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. 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.
43
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 the 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, to the fullest extent permitted by law, not to plead or claim in any such court that 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 GDR 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 the Deposit Agreement, in whole or in part.
44
45
SAMRUDDHI CEMENT LIMITED
By: /s/ Ashok Malu
Name: Mr. Ashok Malu
Title: Director
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
46
EXHIBIT A
[FORM OF GDR]
Number
_____________
|
CUSIP NUMBER: _______ |
Global Depositary Shares (each
Global Depositary Share
representing the right to receive one
(1) Fully Paid equity share)
|
GLOBAL DEPOSITARY RECEIPT
FOR
GLOBAL DEPOSITARY SHARES
representing
DEPOSITED EQUITY SHARES
of
SAMRUDDHI CEMENT LIMITED
(Incorporated under the laws of India)
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY AND THE GLOBAL DEPOSITARY SHARES EVIDENCED HEREBY MAY NOT AT ANY TIME BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY TO ANY PERSON IN INDIA OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A RESIDENT OF INDIA, EXCEPT TO INDIAN MUTUAL FUNDS REGISTERED WITH THE SECURITIES AND EXCHANGE BOARD OF INDIA.
AFTER THE INITIAL DEPOSIT OF SHARES INTO THE GDR FACILITY BY THE COMPANY, THE HOLDER HEREOF WILL NOT BE ENTITLED TO WITHDRAW THE DEPOSITED SECURITIES REPRESENTED BY THE GDSs EVIDENCED HEREBY UNTIL THE SHARES DEPOSITED IN SUCH INITIAL DEPOSIT ARE LISTED ON THE NATIONAL STOCK EXCHANGE OF INDIA LIMITED OR THE BOMBAY STOCK EXCHANGE LIMITED.
X-0
XXXXXXXX, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the βDepositaryβ), hereby certifies that _____________is the owner of ______________ Global Depositary Shares (hereinafter βGDSβ) representing deposited equity shares, including evidence of rights to receive such equity shares (the βSharesβ), of Samruddhi Cement Limited, a corporation incorporated under the laws of India (the βCompanyβ). As of the date of the Deposit Agreement (as hereinafter defined), each GDS represents the right to receive one (1) Share deposited under the Deposit Agreement with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A., Mumbai Branch (the βCustodianβ). The GDS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and VI of the Deposit Agreement. The Depositaryβs Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
The statements made on the face and reverse of this GDR are summaries of certain provisions of the Deposit Agreement and the Articles 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, 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 GDSs into DTC. Each Beneficial Owner of GDSs 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 GDSs. The Depositary may issue Uncertificated GDSs subject, however, to the terms and conditions of Section 2.13 of the Deposit Agreement.
A-2
The Company has informed the Depositary that, under Indian laws, practices and procedures as in effect as of the date of the Deposit Agreement, no Shares may be withdrawn upon presentation of GDSs (and if applicable, the GDRs evidencing such GDSs) for cancellation under Section 2.7 of the Deposit Agreement until (i) the Company has delivered written confirmation that the number of Shares requested for withdrawal have been listed for trading on the Indian Stock Exchanges (such Shares, the βListed Sharesβ) to (x) the Depositary and the Custodian, in the case of Shares deposited in the Initial Deposit, or (y) the Custodian, in the case of Shares deposited subsequently, including upon the conversion of bonds of the Company, (ii) the Listed Shares have been de-materialized (such Shares, the βDe-Materialized Shares,β and Shares that are both Listed Shares and De-Materialized Shares, hereinafter referred to as the βFinal Sharesβ), and (iii) an equivalent number of Final Shares are available at the facilities of the Custodian. The parties hereto acknowledge and agree that (a) the Depositary will deliver Shares represented by GDSs (and if applicable, the GDRs representing such GDSs) presented for cancellation pursuant to Section 2.7 of the Deposit Agreement only to the extent of the number of Final Shares then on deposit with the Custodian, (b) the Depositary will process presentations of GDSs for withdrawal of Final Shares under Section 2.7 of the Deposit Agreement on a first come, first served basis, (c) the Depositary will complete requests for cancellation of GDSs and withdrawal of the Shares represented thereby only to the extent of the number of Final Shares at such time on deposit with the Custodian, (d) the Depositary will refuse to complete a request for cancellation of GDSs and withdrawal of Shares to the extent the number of Shares requested for withdrawal exceeds the number of Final Shares at such time deposited with the Custodian, and (e) the Depositary reserves the right to suspend withdrawals of Shares under Section 2.7 of the Deposit Agreement until such time as the requisite number of Final Shares are deposited with the Custodian. The Company agrees to deliver to the Depositary and/or the Custodian, as applicable, written confirmation of the number of Listed Shares deposited with the Custodian under the Deposit Agreement promptly upon the receipt of confirmation of listing from the Indian Stock Exchanges of such Shares.
A-3
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the GDSs Delivered to it (and, if applicable, the GDR(s) evidencing the GDSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the GDSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the GDSs 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 GDR evidencing the GDS so cancelled, of the Memorandum and Articles of Association of the Company, of any applicable laws and of the rules of the Indian Central Depository System, 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 GDSs representing less than one (1) Share. In the case of Delivery to it of GDSs 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 GDSs the number of GDSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the GDSs 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 GDSs. Notwithstanding anything else contained in this GDR 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 GDSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering GDSs represented by this GDR, 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 GDSs 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.
A-4
The Registrar shall register the split-up or combination of this GDR (and of the GDSs represented hereby) on the books maintained for such purpose and the Depositary shall (x) cancel this GDR and execute new GDRs for the number of GDSs requested, but in the aggregate not exceeding the number of GDSs evidenced by this GDR (canceled), (y) cause the Registrar to countersign such new GDRs, and (z) Deliver such new GDRs to or upon the order of the Holder thereof, if each of the following conditions has been satisfied: (i) this GDR 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 of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case, to the terms and conditions of this GDR, of the Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
A-5
The issuance of GDSs 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 GDSs in particular instances may be refused, or the registration of transfer of GDSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, a Registrar or the Share Registrar 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 or regulation, any government or governmental body or commission or any securities exchange on which the Shares or GDSs are listed, or under any provision of the Deposit Agreement or this GDR, 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). Notwithstanding any provision of the Deposit Agreement or this GDR to the contrary, Holders are entitled to surrender outstanding GDSs to withdraw the Deposited Securities associated therewith 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 shareholdersβ 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 GDSs or the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
A-6
Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of GDSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of GDSs are solely responsible for determining and complying with such reporting requirements, and for obtaining such approvals. Each Holder and each Beneficial Owner hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners to determine and satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations.
A-7
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(i)
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Issuance Fee: to any person depositing Shares or to whom GDSs are issued upon the deposit of Shares (excluding issuances as a result of distributions described in paragraph (iv) below), a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) so issued under the terms of the Deposit Agreement;
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(ii)
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Cancellation Fee: to any person surrendering GDSs for cancellation and withdrawal of Deposited Securities or to any person to whom Deposited Securities are delivered, a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) surrendered;
|
|
(iii)
|
Cash Distribution Fee: to any Holder of GDSs, a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) held for the distribution of cash dividends or other cash distributions (i.e., sale of rights and other entitlements);
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(iv)
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Stock Distribution /Rights Exercise Fee: to any Holder of GDS(s), a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) held for (a) the distribution of stock dividends or other free stock distributions or (b) the exercise of rights to purchase additional GDSs;
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A-8
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(v)
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Other Distribution Fee: to any Holder of GDS(s), a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) held for the distribution of securities other than GDSs or rights to purchase additional GDSs; and
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(vi)
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Depositary Services Fee: to any Holder of GDS(s), a fee not in excess of U.S. $5.00 per 100 GDSs (or fraction thereof) held on the applicable record date(s) established by the Depositary.
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In addition, Holders, Beneficial Owners, persons depositing Shares and persons surrendering GDSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following charges:
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(a)
|
taxes (including applicable interest and penalties) and other governmental charges;
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(b)
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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;
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(c)
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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 GDSs;
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(d)
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the expenses and charges incurred by the Depositary in the conversion of foreign currency;
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(e)
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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, GDSs and GDRs; and
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(f)
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the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the delivery or servicing of Deposited Securities.
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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 GDR and as contemplated in the Deposit Agreement. The Depositary will provide, without charge, a copy of its latest fee schedule to anyone upon request.
A-9
Depositary Fees payable upon (i) deposit of Shares against issuance of GDSs and (ii) surrender of GDSs for cancellation and withdrawal of Deposited Securities will be charged by the Depositary to the person to whom the GDSs so issued are delivered (in the case of GDS issuances) and to the person who delivers the GDSs for cancellation to the Depositary (in the case of GDS cancellations). In the case of GDSs issued by the Depositary into DTC or presented to the Depositary via DTC, the GDS issuance and cancellation fees will be payable to the Depositary by the DTC Participant(s) receiving the GDSs from the Depositary or the DTC Participant(s) surrendering the GDSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC participant(s) as in effect at the time. Depositary fees in respect of distributions and the Depositary services fee are payable to the Depositary by Holders as of the applicable GDS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable Depositary fees is deducted by the Depositary from the funds being distributed. In the case of distributions other than cash and the Depositary service fee, the Depositary will invoice the applicable Holders as of the GDS Record Date established by the Depositary. For GDSs held through DTC, the Depositary fees for distributions other than cash and the Depositary service fee are charged by the Depositary to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such fees to the Beneficial Owners for whom they hold GDSs.
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the GDR program established pursuant to the Deposit Agreement upon such terms and conditions as the Company and the Depositary may agree in writing from time to time. The Company shall pay to the Depositary such fees and charges and reimburse the Depositary for such out-of-pocket expenses as the Depositary and the Company may agree in writing from time to time. Responsibility for payment of such charges and reimbursements may 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 the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4, such right shall extend for those fees, charges and expenses incurred prior to the effectiveness of such resignation or removal.
A-10
The Company will publish the information contemplated in Rule 12g3-2(b)(2)(i) under the Exchange Act on its internet website or through an electronic information delivery system generally available to the public in the Companyβs primary trading market. As of the date hereof the Companyβs internet website is xxxx://xxx.xxxxxxxxxxx.xxx/XxxxxxxxxXxxxxx.xxx. The information so published by the Company may not be in English, except that the Company is required, in order to maintain its exemption from the Exchange Act reporting obligations pursuant to Rule 12g3-2(b), to translate such information into English to the extent contemplated in the instructions to Rule 12g3-2(b). The information so published by the Company cannot be retrieved from the Commissionβs internet website, and cannot be inspected or copied at the public reference facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 000 X 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 GDSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such GDSs, provided that such inspection shall not be, to the Registrarβs knowledge, for the purpose of communicating with Holders of such GDSs 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 GDSs.
The Registrar may close the transfer books with respect to the GDSs, 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 paragraph (24).
A-11
Dated:
CITIBANK, N.A.
Transfer Agent and Registrar
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CITIBANK, N.A.
as Depositary
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By: |
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By: |
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Authorized Signatory
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Authorized Signatory
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The address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-12
[FORM OF REVERSE OF GDR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
Upon the timely receipt by the Depositary of a notice from the Company that it intends to make a distribution that consists of a dividend in, or free distribution of Shares, the Depositary shall establish a GDS Record Date upon the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9 of the Deposit Agreement, distribute to the Holders as of the GDS Record Date in proportion to the number of GDSs held as of the GDS Record Date, additional GDSs, which represent in the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if additional GDSs are not so distributed, take all actions necessary so that each GDS issued and outstanding after the GDS Record Date shall, to the extent permissible by law, thenceforth also represent rights and interest 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, and (b) taxes). In lieu of delivering fractional GDSs, the Depositary shall sell the number of Shares or GDSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms set forth in Section 4.1 of the Deposit Agreement.
A-13
Upon the timely receipt of a notice indicating that the Company wishes an elective distribution in cash or Shares to be made available to Holders of GDSs 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, subject to the terms and conditions of the Deposit Agreement, establish a GDS 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 GDSs. If a Holder elects to receive the distribution in cash, the distribution shall be made as in the case of a distribution in cash. If the Holder hereof elects to receive the distribution in additional GDSs, the distribution shall be made as in the case of a distribution in Shares upon the terms described in the Deposit Agreement. If such elective distribution is not reasonably practicable or if the Depositary did not receive satisfactory documentation set forth in the Deposit Agreement, the Depositary shall establish a GDS Record Date upon the terms of Section 4.9 of the Deposit Agreement and, to the extent permitted by law, distribute to Holders, on the basis of the same determination as is made in India in respect of the Shares for which no election is made, either (x) cash or (y) additional GDSs representing such additional Shares, in each case, upon the terms described in the Deposit Agreement. 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 GDSs). 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.
A-14
Upon the 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 GDSs, the Depositary upon consultation with the Company, shall determine, whether it is lawful and reasonably 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 timely 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 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 a GDS Record Date (upon the terms described in Section 4.9 of the Deposit Agreement) and establish procedures (x) to distribute rights to purchase additional GDSs (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 and (b) taxes), and (z) to deliver GDSs 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 GDSs). If (i) the Company does not timely 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 of the Deposit Agreement or determines 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 and private sale) as it may deem practicable. The Depositary shall, upon such 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 hereof and of Section 4.1 of the Deposit Agreement. If the Depositary is unable to make any rights available to Holders upon the terms described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale of the rights upon the terms described in Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights to lapse. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or 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 GDS 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 may be 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 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 GDSs 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.
A-15
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 be able 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 GDSs, 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 GDS Record Date, in proportion to the number of GDSs 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 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 and (b) taxes) to the Holders as of the GDS Record Date 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 for the account of the Holders in any way it deems reasonably practicable under the circumstances.
A-16
HOLDERS OF GDSs WILL NOT BE ENTITLED TO ANY VOTING RIGHTS IN RELATION TO THE DEPOSITED SECURITIES REPRESENTED BY GDSs. THE DEPOSITARY WILL NOT EXERCISE ANY VOTING RIGHTS IN RELATION TO THE DEPOSITED SECURITIES UNLESS REQUIRED TO DO SO UNDER APPLICABLE LAW. IN SUCH CASE, THE DEPOSITARY SHALL EXERCISE THE VOTING RIGHTS AT THE DIRECTION OF THE COMPANY AS SET FORTH IN THIS PARAGRAPH (17).
As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall, if requested in writing by the Company, fix the GDS Record Date for determining the Holders entitled to receive information as to such meeting or solicitation of consent or proxy in accordance with Section 4.9 and shall distribute to the Holders as of the GDS Record Date: (a) such notice of meeting or solicitation of consent or proxy, and (b) a statement that the Holders of GDSs may not vote the Shares or other Deposited Securities represented by their GDSs.
A-17
Notwithstanding anything contained in the Deposit Agreement or any GDR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of any stock exchange on which the GDSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicize to Holders, instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
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 Deposited Securities represented by GDSs except as required by Indian law. In the event that under applicable Indian law the Depositary is obliged to exercise any such voting rights, then the Depositary shall (at the written direction of the Company's Board of Directors but subject to being advised by the Depositary's legal counsel that such action is in conformity with applicable laws):
(a) vote the Deposited Securities according to instructions given in writing by the Board of Directors of the Company; or
(b) give proxies in respect thereof in favor of a Director of the Company nominated by the Board of Directors of the Company from time to time; or
(c) if so demanded by the Company, give an irrevocable power of attorney in favor of a Director of the Company or any other person or company nominated by the Board of Directors of the Company for the purpose in relation to the voting rights therefor to be exercised at the meetings of the Company; or
(d) vote in the same manner as those shareholders which have been designated by the Board of Directors in writing from time to time as being members of the Birla Group.
Notwithstanding anything else contained in the Deposit Agreement or any GDR, 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 Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary.
A-18
A-19
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
A-20
A-21
A-22
A-23
(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 GDS and all rights thereunder, hereby irrevocably constituting and appointing ________________________ attorney-in-fact to transfer said GDS on the books of the Depositary with full power of substitution in the premises.
Dated:
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Name:________________________________
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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 GDR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of GDRs must be guaranteed by a member of a Medallion Signature Program approved by the Securities Transfer Association, Inc.
Legends
[The GDRs issued in respect of Partial Entitlement Global Depositary Shares shall bear the following legend on the face of the GDR: βThis GDR evidences GDSs representing 'partial entitlement' equity Shares of Samruddhi Cement Limited and as such do not entitle the holders thereof to the same per-share entitlement as other equity Shares (which are 'full entitlement' equity Shares) issued and outstanding at such time. The GDSs represented by this GDR shall entitle holders to distributions and entitlements identical to other GDSs when the equity Shares represented by such GDSs become 'full entitlement' equity Shares.β]
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.
The Company, the Holders, the Beneficial Owners and the persons depositing Shares or surrendering GDSs for cancellation agree to pay the following fees of the Depositary:
Service |
Rate
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By Whom Paid
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(1) |
Issuance of GDSs upon deposit of Shares (excluding issuances as a result of distributions described in paragraph (4) below).
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Up to U.S. $5.00 per 100 GDSs (or fraction thereof) issued.
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Person depositing Shares or person receiving GDSs.
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(2) |
Delivery of Deposited Securities against surrender of GDSs.
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Up to U.S. $5.00 per 100 GDSs (or fraction thereof) surrendered.
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Person surrendering GDSs for the purpose of withdrawal of Deposited Securities or person to whom Deposited Securities are delivered.
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(3) |
Distribution of cash dividends or other cash distributions (i.e., sale of rights and other entitlements).
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Up to U.S. $5.00 per 100 GDSs (or fraction thereof) held.
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Person to whom distribution is made.
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(4) |
Distribution of GDSs pursuant to (i) stock dividends or other free stock distributions, or (ii) exercise of rights to purchase additional GDSs.
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Up to U.S. $5.00 per 100 GDSs (or fraction thereof) held.
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Person to whom distribution is made.
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(5) |
Distribution of securities other than GDSs or rights to purchase additional GDSs (i.e., spin-off shares).
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Up to U.S. $5.00 per 100 GDSs (or fraction thereof) held.
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Person to whom distribution is made.
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(6) |
Up to U.S. $5.00 per 100 GDSs (or fraction thereof) held on the applicable record date(s) established by the Depositary.
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Person holding GDSs on the applicable record date(s) established by the Depositary.
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B-1
II.
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Holders, Beneficial Owners, persons depositing Shares and persons surrendering GDSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following charges:
(i)
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taxes (including applicable interest and penalties) and other governmental charges;
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(ii)
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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;
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(iii)
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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 GDSs;
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(iv)
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the expenses and charges incurred by the Depositary in the conversion of foreign currency;
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(v)
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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, GDSs and GDRs; and
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(vi)
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the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Securities.
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B-2