DR. REDDY’S LABORATORIES LIMITED [13,500,000] American Depositary Shares Each Representing One Equity Share par value Rs. 5 per Equity Share UNDERWRITING AGREEMENT [November 16], 2006
Exhibit 1.1
XX. XXXXX’X LABORATORIES LIMITED
[13,500,000] American Depositary Shares
Each Representing
One Equity Share
par value Rs. 5 per Equity Share
[November 16], 2006
[November 16], 2006
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
as Representatives of the several Underwriters
Incorporated
Citigroup Global Markets Inc.
as Representatives of the several Underwriters
| c/o | Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 4 World Financial Center 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
| Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Xx. Xxxxx’x Laboratories Limited (the “Company”), a company incorporated under the laws of the
Republic of India (“India”) as a public company with limited liability, proposes to issue and sell
equity shares, par value Rs. 5 per share, of the Company (the “Equity Shares”) in connection with
an offering and sale of American Depositary Shares, each representing one Equity Share (the
“Offering”).
It is understood that the Company and you are entering into this Agreement providing for the
purchase by the Underwriters named in Schedule I hereto (the “Underwriters”) for whom you are
acting as representatives (the “Representatives”), an aggregate of [13,500,000] American Depositary
Shares (the “Firm ADSs”) and, at the election of the Representatives on behalf of the Underwriters,
up to [1,500,000] additional American Depositary Shares (the “Optional ADSs”). The Firm ADSs and
the Optional ADSs are herein collectively referred to as the “ADSs” and the Equity Shares
represented thereby as the “Shares.”
All references to “U.S. dollars”, “US$” or “$” are to United States dollars and all references
to “Rs.” are to Indian rupees.
In connection with the Offering, the Company has filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement on Form F-3 (No.
333-138608), including a prospectus, relating to the Shares represented by the ADSs, which
registration statement became effective upon filing under Rule 462(e) under the Securities Act of
1933, as amended (the “Act”). Any information included in a prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be part of and
included in such registration statement at the time it became effective pursuant to paragraph (b)
of Rule 430B is referred to as “Rule 430B Information”. Each prospectus used in connection with the
offering of the Shares and the ADSs that omitted information by virtue of Rule 430A or Rule 430B is
herein called a “preliminary prospectus.” The registration statement at the time it
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became effective, including all exhibits thereto, the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Act and any other documents filed by the Company
with the Commission pursuant to the Securities and Exchange Act of 1934, as amended (the “Exchange
Act”) that are incorporated by reference therein at the time it became effective, and including the
information (if any) deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430 B under the Act, is hereinafter referred to as the “Registration
Statement”; the prospectus in the form first used in connection with the confirmation of sales of
ADSs (or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Act), including, if applicable, any prospectus wrapper
prepared in connection therewith, is hereinafter referred to as the “Prospectus”. The Registration
Statement at the time it originally became effective is herein called the “Original Registration
Statement.”
As used herein, the terms “Registration Statement”, “preliminary prospectus”, “Time of Sale
Prospectus” (as defined below) and Prospectus shall include the documents, if any, incorporated by
reference therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to
the Time of Sale Prospectus or any free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Exchange Act that are incorporated by
reference therein.
The ADSs are to be issued pursuant to a deposit agreement, dated as of April 10, 2001, and
most recently amended as of [ ], among the Company, JPMorgan Chase Bank, N.A., as depositary
(the “Depositary”), and registered holders and beneficial owners from time to time of the American
Depositary Receipts (the “ADRs”) issued by the Depositary and evidencing the American Depositary
Shares, as amended and supplemented from time to time (the “Deposit Agreement”). Pursuant to the
Deposit Agreement, the ICICI Bank Limited has been appointed as the domestic custodian in India
(the “Indian Domestic Custodian”) to hold Equity Shares on behalf of the Depositary. Each American
Depositary Share will initially represent the right to receive one Equity Share deposited pursuant
to the Deposit Agreement.
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), (C) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Shares and the ADSs in reliance on the exemption of Rule 163
under the Act and (D) at the date hereof, the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 under the
Act, including not having been and not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf registration statement”, as
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defined in Rule 405, and the Shares and ADSs, since their registration on the Registration
Statement, have been and remain eligible for registration by the Company on a Rule 405
“automatic shelf registration statement”. The Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic
shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) under the Act) of the Shares and the ADSs and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under
the Act.
(ii) Compliance with Registration Requirements. The Company meets the
requirements for use of Form F-3 under the Act and has prepared and filed with the
Commission the Original Registration Statement in respect of Shares represented by the
ADSs. The Original Registration Statement became effective upon filing with the Commission
under Rule 462(e) under the Act and any post-effective amendment also became effective
under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been instituted or are pending or
threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with.
Any offer that is a written communication relating to the Shares and the ADSs made
prior to the filing of the Original Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the
Act) has been filed with the Commission in accordance with the exemption provided by Rule
163 under the Act and otherwise complied with the requirements of Rule 163 under the Act,
including without limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the Act provided by Rule 163 under the Act.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined
below), the Statutory Prospectus (as defined below) and the information included on
Schedule II hereto, all considered together (collectively, the “Time of Sale Prospectus”),
nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together
with the Time of Sale Prospectus, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means l:00 [a/p]m (New York time) on [November 16], 2006 or
such other time as agreed by the Company and the Representatives.
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“Statutory Prospectus” as of any time means the prospectus relating to the Shares and
the ADSs that is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Act, relating to the Shares and the ADSs that (i) is required to be
filed with the Commission by the Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Shares and the ADSs or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule II hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares and the ADSs or until any
earlier date that the issuer notified or notifies the Representatives as described in the
next sentence, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or
the Prospectus, including any document incorporated by reference therein and any preliminary
or other prospectus deemed to be a part thereof that has not been superseded or modified.
(iii) No Stop Order. No order preventing or suspending the use of any
preliminary prospectus or the Prospectus has been issued by the Commission, and each
preliminary prospectus, at the time of filing thereof, conformed in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder.
(iv) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, when they became
effective or at the respective times they were or hereafter are filed with the Commission,
in each case, complied and will comply in all material respects to the requirements of the
Act and the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and when read together with the other information in the Prospectus, (a) at the
time the Original Registration Statement became effective, (b) at the earlier of the time
the Prospectus was first used and the date and time of the first contract of sale of Shares
or ADSs in this offering and (c) at each Time of Delivery (as defined in Section 4(a)
below) did not and will not contain an
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untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use therein.
(v) Conformity to the Requirements of the Act; No Untrue Statements or
Omissions. (A) At the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) under the Act and at each Time of Delivery, the
Registration Statement did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading,
(B) the Registration Statement and the Prospectus, at the respective times the Original
Registration Statement and each amendment thereto became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Act
or as of the issue date, as applicable, and at each Time of Delivery, complied and, as
amended or supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (C) the
Prospectus, as of its issue date and at each Time of Delivery, does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use therein.
(vi) ADS Registration Statement. Registration statements on Form F-6 (Nos.
333-13312 and 333-138547) in respect of the ADSs have been filed with the Commission; such
registration statements have been declared effective by the Commission; no other document
with respect to such registration statements has heretofore been filed with the Commission;
no stop order suspending the effectiveness of such registration statements has been issued
and no proceeding for that purpose has been initiated or threatened by the Commission (the
various parts of such registration statements, including all exhibits thereto, each as
amended at the date hereof, being hereinafter collectively called the “ADS Registration
Statement”); and the ADS Registration Statement, as amended, when it became effective
conformed, and any further amendments thereto will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not, as of the applicable effective date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
(vii) Free Writing Prospectus. Any free writing prospectus that the Company
is required to file pursuant to Rule 433(d) under the Act has been, or will be, filed with
the Commission in accordance with the requirements of the Act and the applicable rules
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and regulations of the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or that
was prepared by or on behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder. Except for the free writing prospectuses, if
any, identified in Schedule II hereto, and electronic road shows, if any, furnished to the
Representatives before first use, the Company has not prepared, used or referred to, and
will not, without the prior consent of the Representatives, prepare, use or refer to, any
free writing prospectus.
(viii) Disclosure at Time of Sale. The Time of Sale Prospectus complies in
all material respects with the Act and applicable rules and regulations thereunder, and
does not, and at the time of each sale of the ADSs in connection with the Offering when the
Prospectus is not yet available to prospective purchasers and at each Time of Delivery (as
defined in Section 4(a) below), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to statements in or
omissions from the Time of Sale Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein. Each free writing prospectus identified in Schedule II hereto
and electronic roadshow furnished to you before first use, as of its issue date and at all
subsequent times through the completion of the Offering did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, any preliminary prospectus or Prospectus.
(ix) No Distribution of Other Offering Material. Neither the Company nor any
of its subsidiaries or affiliates has distributed, nor will it distribute prior to the
later of the Second Time of Delivery (as defined below) and the completion of the
Underwriters’ distribution of the ADSs, any offering material in connection with the
Offering other than the Time of Sale Prospectus, the Prospectus, the Registration
Statement, the ADS Registration Statement, free writing prospectuses identified in Schedule
II hereto and electronic roadshows furnished to you before first use.
(x) No Material Adverse Change. There has not occurred any material adverse
change, or any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business, management, operations or
prospects of the Company and its Significant Subsidiaries (each of which is listed in
Schedule III hereto and individually referred to as a “Significant Subsidiary”) taken as a
whole, whether or not arising in the ordinary course of business, from that set forth in the
Time of Sale Prospectus and the Prospectus. Subsequent to the respective dates as of which
information is given in each of the Registration Statement, the Time of Sale Prospectus and
the Prospectus, (A) the Company and its Significant Subsidiaries have not incurred any
material liability or
obligation, direct or contingent, nor entered into any material transaction; (B) the
Company has not purchased any of its outstanding
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capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (C) there has not been any material change in the
capital stock, short term debt or long term debt of the Company and its Significant
Subsidiaries, except in each case as described in each of the Registration Statement, the
Time of Sale Prospectus and the Prospectus, respectively.
(xi) Compliance with Indian Rules and Regulations. Each of the Registration
Statement and the ADS Registration Statement, when it became effective, and the offer and
sale of Shares and the ADSs in the manner contemplated therein, did not violate and, as
amended or supplemented, if applicable, will not violate Indian laws and the rules,
regulations and other requirements of the Ministry of Finance of India, the Reserve Bank of
India, the Ministry of Company Affairs of India, the Company Law Board, the Securities and
Exchange Board of India, and all other applicable Indian governmental regulatory,
administrative or similar authorities having jurisdiction over the Company or any of its
subsidiaries or their respective property or assets, as applicable (collectively, the
“Indian Authorities”). In addition, compliance by the Company with its obligations under
the Act and the Exchange Act, including the applicable rules and regulations of the
Commission thereunder, and the rules and regulations of the National Association of
Securities Dealers, Inc. (“NASD”) and the New York Stock Exchange, Inc. will not violate
any Indian laws or the rules and regulations of the Indian Authorities.
(xii) Due Organization. The Company has been duly
incorporated and is validly existing as a public limited company under the
laws of India and has the corporate power and authority to own or lease its properties and
to conduct its business as described in each of the Time of Sale Prospectus and the
Prospectus; each Significant Subsidiary of the Company has been duly incorporated and is
validly existing as a company under the laws of its jurisdiction of
incorporation, each with corporate power and authority to own or lease its properties and
conduct its respective business as described in each of the Time of Sale Prospectus and the
Prospectus; and each of the Company and its Significant Subsidiaries is duly qualified to
transact business in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business, management, operations or business
prospects of the Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business (a “Material Adverse Effect”).
(xiii) Real Properties, Encumbrances and Leases. Each of the Company and its
Significant Subsidiaries has good and marketable title to all real property and good and
marketable title to all personal property owned by it, free and clear of all liens,
encumbrances and defects except such as are described in each of the Time of Sale
Prospectus and the Prospectus or such as would not have a Material Adverse Effect; and
any real property and buildings held under lease by the Company and its Significant
Subsidiaries are held by it under valid, subsisting and enforceable leases, with such
exceptions as are not material to its business or do not materially interfere with the use
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made of such property and buildings by the Company, except as described in each of the Time
of Sale Prospectus and the Prospectus.
(xiv) Capitalization. The Company has an authorized capitalization as set forth
in each of the Time of Sale Prospectus and the Prospectus; and all of the issued shares of
capital stock of the Company (including the Shares) have been duly and validly authorized
and issued, and were not issued in violation of any preemptive or similar rights of any
person or entity against the Company; all of the Shares, represented by the ADSs, when
delivered in accordance with the terms of this Agreement, will be fully paid; all of the
issued and outstanding Equity Shares and American Depositary Shares (including the Shares
and the ADSs) conform to the description of the Equity Shares and the American Depositary
Shares contained in each of the Time of Sale Prospectus and the Prospectus; all of the
issued and outstanding Equity Shares have been duly listed and
admitted for trading on the Bombay Stock Exchange Limited and the National Stock Exchange of
India Limited (the “Indian Exchanges”); the holders of outstanding shares of capital stock
of the Company are not entitled to preemptive rights, including, but not limited to, any
such rights under Section 81 of the Companies Act, 1956 in India (the “Indian Companies
Act”) or other rights to acquire the Shares or the ADSs in connection with the transactions
contemplated hereby or otherwise; except as described in each of the Time of Sale Prospectus
and the Prospectus, there are no outstanding securities convertible into or exchangeable
for, or warrants, rights or options to purchase from the Company or any of its Significant
Subsidiaries, or obligations of the Company to issue Equity Shares or any other class of
capital stock of the Company, in connection with completion of the transactions contemplated
hereby; the Shares may be freely deposited by or on behalf of the Company with the Indian
Domestic Custodian which shall form the underlying shares for the ADRs to be issued; any
restrictions on the future deposit of Equity Shares are fully and accurately disclosed in
each of the Time of Sale Prospectus and the Prospectus; there are no restrictions on
subsequent transfers of the ADSs under the laws of India and of the United States except as
described in each of the Time of Sale Prospectus and the Prospectus under “Description of
Equity Shares” and “Description of the American Depositary Shares”, as the case may be; all
of the issued shares of capital stock of each Significant Subsidiary have been duly and
validly authorized and issued, and were not issued in violation of any preemptive or similar
rights of any person or entity against such Significant Subsidiary;
and all of the issued shares of capital stock of each Significant Subsidiary owned by the Company, directly or
through subsidiaries, is owned free and clear of all liens, encumbrances, equities or
claims.
(xv) No Agreement to File a Registration Statement. No shareholder of the
Company or of any Significant Subsidiary or any other person has any registration or other
similar rights to have any of the Company’s securities
registered for sale under the Registration Statement or the ADS Registration Statement
or included in the Offering.
(xvi) Authorization of the Deposit Agreement. The Deposit Agreement, including
each amendment and supplement thereto, has been duly authorized, executed and delivered by
the Company, and, assuming due authorization, execution and delivery thereof by the
Depositary, constitutes a valid and legally binding agreement of the
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Company, enforceable
against the Company in accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfer), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights and except as enforcement thereof is subject to general equity principles
(regardless of whether enforcement is considered in a proceeding in equity or at law); upon
issuance by the Depositary of ADRs evidencing the ADSs against the deposit of the Shares in
respect thereof in accordance with the provisions of the Deposit Agreement, such ADRs will
be duly and validly issued and the persons in whose names the ADRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement; the Deposit Agreement
and the ADRs conform in all material respects to the descriptions thereof contained in each
of the Time of Sale Prospectus and the Prospectus.
(xvii) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xviii) Necessary Authorizations for Transactions. No action, consent,
authorization, approval, order, certificate, license or permit of, clearance by, or filing,
registration or qualification with any court or administrative, governmental or regulatory
agency or body or stock exchange authority having jurisdiction over the Company is required
for the performance of its obligations under this Agreement and the Deposit Agreement, or
the transactions contemplated hereby and thereby, other than such (A) as have been obtained
or made prior to the date of this Agreement and are in full force and effect or (B) as may
be required by the securities or Blue Sky laws of the various U.S. states in connection with
the offer and sale of the ADSs. All such authorizations (including authorizations by and on
behalf of the Company) necessary for performance by the Company of its obligations under
this Agreement, the Deposit Agreement, or the transactions contemplated hereby and thereby,
have been obtained and are in full force and effect.
(xix) No Restrictions or Withholding Taxes on Dividends. There are no
restrictions under Indian law nor any approvals currently required in India (including any
foreign exchange or foreign currency approvals) in order for the Company to pay dividends or
other distributions declared by the Company to holders of Equity Shares, or ADSs, including
the Depositary, or for the conversion by the Depositary of any dividends paid in Indian
rupees to U.S. dollars or the repatriation
thereof out of India, except as set forth in each of the Time of Sale Prospectus and
the Prospectus. No such dividends and other distributions, including such dividends to
persons not resident in India, are currently subject to withholding or other taxes, levies
or charges under the laws and regulations of India, except as set forth in each of the Time
of Sale Prospectus and the Prospectus.
(xx) No Defaults or Legal Conflicts. The sales of the ADSs contemplated herein
and the deposit of the Equity Shares with the Indian Domestic Custodian on behalf of the
Depositary against issuance of the ADRs evidencing the ADSs and the compliance by the
Company with all of the provisions of this Agreement and the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated do not and will not (A)
result in any violation of the Company’s or any Significant Subsidiary’s
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certificate of
incorporation, memorandum of association and articles of association or other organizational
document (collectively, the “Charter Documents”) or (B) contravene or result in a default
under (1) any provision of applicable law or regulation (including, without limitation, any
applicable Indian law limiting foreign ownership of the Company), (2) any agreement,
obligation, condition, covenant or instrument binding upon the Company or any Significant
Subsidiary or any of their properties or (3) any judgment, order or decree of any local or
other court or public, governmental or regulatory agency or body or stock exchange authority
having jurisdiction over the Company, or any Significant Subsidiary, or any of their assets,
except for such violations or contraventions under clause (B)(2) above that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(xxi) No Violation of Existing Agreements or Laws. None of the Company or any
Significant Subsidiary is (A) in violation of its respective Charter Documents (B) in
default (or, with the giving of notice or lapse of time, would be in default) under any
indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other
instrument to which it is a party or by which it may be bound, or to which any of its
property or assets is or may be subject or (C) in violation or default of any provision of
applicable law or regulation (including, without limitation, any applicable law or
regulation regarding money laundering or banking practices, any law or regulation
promulgated by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”), all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 or any Indian law
limiting foreign ownership of the Company), or any judgment, order or decree of any court or
governmental, administrative or regulatory agency or body or stock exchange authority having
jurisdiction over it or any of its assets, as applicable, except where such violation or
default under clause (B) above would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(xxii) Stamp Duty and Other Transaction Taxes. Other than as set forth in each of the Time of Sale Prospectus and the Prospectus, no
transaction tax, issue tax, stamp duty or other issuance or transfer tax or duty or
withholding tax is or will be payable by or on behalf of the Underwriters, or otherwise
imposed on any payments made to the Underwriters, to the Government of India or any
political subdivision or taxing authority thereof or therein in connection with (A) the
deposit of Shares by the Company with the Indian Domestic Custodian on behalf of the
Depositary against the issuance of ADRs evidencing ADSs, (B) the sale and delivery on behalf
of the Company of the ADSs to or for the respective accounts of the Underwriters as set
forth in each of the Time of Sale Prospectus and the Prospectus, and pursuant to the terms
of this Agreement, (C) the sale and delivery outside of India by the Underwriters of the
ADSs to the purchasers thereof in the manner contemplated pursuant to the terms of this
Agreement or (D) any other transaction or payment contemplated by this Agreement or the
Deposit Agreement. To ensure the legality, validity, enforceability or admissibility into
evidence in a legal or administrative proceeding in India of each of this Agreement or the
Deposit Agreement, it is not necessary that this Agreement or the Deposit Agreement be
filed or recorded with any court or other authority in India or that any registration tax,
stamp duty or similar tax be paid in India on or in respect of any of this Agreement, the
Deposit Agreement or any other document to be furnished hereunder or thereunder, other than
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court costs, including (without limitation) filing fees and deposits to guarantee judgment
required by a Indian court of law and except that this Agreement and the Deposit Agreement
will only be admissible in evidence in India for purposes of enforcement if they are duly
stamped in accordance with the Indian Stamp Xxx 0000.
(xxiii) No Stabilization Action. Neither the Company nor any Significant
Subsidiary or any of their respective affiliates has taken, directly or indirectly, any
action which was designed to or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and ADSs.
(xxiv) Statements in Prospectus. The statements set forth or incorporated by
reference in each of the Time of Sale Prospectus and the Prospectus under the captions
“Description of Equity Shares” and “Description of the American Depositary Shares”, insofar
as they purport to constitute a summary of the terms of the Equity Shares and the ADSs,
respectively, and under the captions “Related Party Transactions”, “Enforcement of Civil
Liabilities”, “Regulations and Restrictions on Foreign Ownership of Indian Securities” and
“Government of India Approvals”, fairly summarize, in all material
respects, the matters referred to therein.
(xxv) No Pending Legal Proceedings. There are no legal, arbitral or
governmental proceedings pending or, to the best knowledge of the Company, threatened, to
which the Company or any Significant Subsidiary is a party or to which any of the
properties of the Company or any Significant Subsidiary is subject (A) other than
proceedings described in all material respects in each of the Time of Sale Prospectus and
the Prospectus, and proceedings that would not have a Material Adverse Effect on the
Company or any Significant Subsidiary, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus, or (B) that
are required to be described in the Time of Sale Prospectus, the Prospectus, the
Registration Statement, or the ADS Registration Statement, and are not so described.
(xxvi) Investment Company Act. The Company is not, and after giving effect to
the Offering and the application of the proceeds thereof, will not be required to register
as an “investment company” under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(xxvii) Necessary Authorizations to Conduct Businesses. Except as set forth in
each of the Time of Sale Prospectus and the Prospectus, each of the Company and its
Significant Subsidiaries has obtained all necessary certificates, authorizations, licenses,
concessions, approvals, orders or permits (collectively, “Governmental Licenses”) issued
by, and has made all declarations and filings with, all local and other governmental
authorities, all self-regulatory organizations, all courts and other tribunals and all
appropriate regulatory agencies or bodies, or governmental agencies, necessary (A) to own,
lease or license, as the case may be, and to operate and use its properties and assets, (B)
to conduct the businesses now conducted by it in the manner described in each of the Time
of Sale Prospectus and the Prospectus and (C) to own all of its equity
11
interests in a
person or entity, amounting to 5% or more, except where the failure to so possess, declare
or file would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect; and neither the Company nor any of its Significant Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such Governmental
Licenses, which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to result in a Material Adverse
Effect.
(xxviii) Independent Registered Public Accountants. KPMG India, who have
certified the United States generally accepted accounting principles (“U.S. GAAP”)
consolidated financial statements of the Company, are registered with the Public Company
Accounting Oversight Board (“PCAOB”) and are independent public or certified public
accountants with respect to the Company and its Subsidiaries as required by the Act and the
Exchange Act and the applicable published rules and regulations of the Commission
thereunder. Deloitte, who have certified the U.S. GAAP financial statements of beta Holding
GmbH, a German company (“betapharm”), are independent public or certified public accountants
with respect to betapharm and its subsidiaries to the extent required by the Act and the
Exchange Act and the applicable published rules and regulations of the Commission
thereunder.
(xxix) U.S. GAAP Financial Statements. The U.S. GAAP audited consolidated
financial statements and the interim unaudited consolidated financial statements of the
Company included and/or incorporated by reference in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, together with the related schedules and notes, present
fairly, in all material
respects, the financial positions of the Company and its consolidated subsidiaries as
of the dates indicated and the statement of operations, stockholders’ equity and cash flows
of the Company and its consolidated subsidiaries for the periods specified; the said
financial statements have been prepared in conformity with U.S. GAAP applied on a consistent
basis throughout the periods involved and the audit of such financial statements has been
conducted in compliance with the PCAOB’s standards. The supporting schedules, if any,
included and/or incorporated by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus present fairly in accordance with U.S. GAAP the information
required to be stated therein. The U.S. GAAP selected financial and operating data included
and/or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus present fairly the information shown therein and have been compiled on a
basis consistent with that of the U.S. GAAP audited financial statements included and/or
incorporated by reference in the Time of Sale Prospectus and the Prospectus. Except for the
financial statements of betapharm included or incorporated by reference in the Time of Sale
Prospectus and the Prospectus, no financial statements of any other person is required to be
included in the Time of Sale Prospectus and the Prospectus pursuant to Rule 3-05 of
Regulation S-X. The pro forma financial statements and the related notes thereto included
in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly
the information shown therein, comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and have been properly
compiled on the bases described therein, and the assumptions used in the preparation
12
thereof
are reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. Other than the pro forma financial
statements included in the Time of Sale Prospectus and the Prospectus and the information
under the caption “Unaudited Pro Forma Financial Statements”, no pro forma financials of the
Company are required to be included in the Time of Sale Prospectus and the Prospectus
pursuant to Rule 11-01 of Regulation S-X.
(xxx) Intellectual Property Rights. The Company and its subsidiaries own,
possess, license or have other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks, trade and service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual
property (collectively, the “Intellectual Property”) necessary for the conduct of the
Company’s business as now conducted or as proposed in the Prospectus to be conducted. Except
as set forth in each of the Time of Sale Prospectus and the Prospectus, (a) there are no
rights of third parties to any such Intellectual Property other than the Intellectual
Property licensed from or licensed to third parties; (b) there is no material infringement by
third parties of any such Intellectual Property; (c) except as set forth on Schedule V hereto, there is no pending or threatened
action, suit, proceeding or claim by others challenging the Company’s rights in or to any
such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (d) there is no
pending or threatened action, suit, proceeding or claim by others challenging the validity
or scope of any such Intellectual Property, and the Company is unaware of any facts which
would form a
reasonable basis for any such claim; (e) there is no pending or threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of others, and the
Company is unaware of any other fact which would form a reasonable basis for any such claim;
(f) there is no U.S. patent or published U.S. patent application which contains claims that
dominate or may dominate any Intellectual Property described in the Time of Sale Prospectus
and the Prospectus as being owned by or licensed to the Company or that interferes with the
issued or pending claims of any such Intellectual Property; and (g) there is no prior art of
which the Company is aware that may render any U.S. patent held by the Company invalid or
any U.S. patent application held by the Company unpatentable which has not been disclosed to
the U.S. Patent and Trademark Office.
(xxxi) Enforcement of Rights in India by Holders of ADSs. Under the laws of
India, each registered holder or beneficial owner of ADSs shall be entitled, subject to the
Deposit Agreement, to seek enforcement of its rights through the Depositary or its nominee
registered as representative of the holders of the ADSs in a direct suit, action or
proceeding against the Company. It is not necessary in order to enable any owner of ADSs to
enforce any of its rights that such owner of ADSs be licensed, qualified or entitled to do
business in India.
(xxxii) Insurance. Each of the Company and its Significant Subsidiaries
maintains insurance of the type and in the amounts which the Company believes to be
reasonable and customary for its business. All such insurance is in full force and effect.
13
The Company has no reason to believe that it or any of its Significant Subsidiaries will not
be able to (A) renew its existing insurance coverage as and when such coverage expires or
(B) obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in a Material
Adverse Effect.
(xxxiii) Taxes. The Company and each Significant Subsidiary have prepared and
timely filed all tax returns, reports and other related information which are required to be
filed by or with respect to it or has properly requested extensions thereof, except where
the failure to file such tax returns, reports and other related information would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. Except as described in the Time of Sale Prospectus and the Prospectus, all taxes,
assessments, fees and other governmental charges due on such returns or pursuant to any
assessment received by the Company and each Significant Subsidiary or which are imposed upon
it or on any of its properties or assets or in respect of any of its business, income or
profits have been fully paid when due, other than taxes or charges that are being contested
in good faith by appropriate proceedings. Except as described in the Time of Sale
Prospectus and the Prospectus, the Company has made adequate charges, accruals and reserves
in respect of all such tax liabilities.
(xxxiv) Transactions with Affiliates. All material transactions between the
Company and its related parties are fully and fairly described in all material respects in
each of the Time of Sale Prospectus and the Prospectus, and each such transaction is on
terms no less favorable to the Company than could be obtained with an unaffiliated third
party.
(xxxv) Accounting Controls and Disclosure Controls. Each of the Company and its
subsidiaries maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with management’s
general or specific authorization, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. GAAP and Indian GAAP, as
applicable, and to maintain accountability for assets, (C) access to assets is permitted
only in accordance with management’s general or specific authorization and (D) the recorded
accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and the Company and each
subsidiary keeps books, records, and accounts, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of assets of such entity. Except as
described in each of the Time of Sale Prospectus and the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (ii) no
change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting
The Company and its subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed,
14
summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure.
(xxxvi) Financial Condition and Critical Accounting Policies. The sections
entitled “Selected Consolidated Financial Data”, “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and “Unaudited Pro Forma Financial
Statements” in the Time of Sale Prospectus and the Prospectus comply, in all material
respects, with the relevant securities laws and the Commission’s rules and interpretations
governing the disclosure of the Company’s financial condition and results of operations and
critical accounting policies.
(xxxvii) No Contemplated Merger or Acquisition. Notwithstanding the Company’s
intention to acquire one or more companies as disclosed in the each of the Time of Sale
Prospectus and the Prospectus under the caption “Use of Proceeds”, the Company has yet to
enter into a letter of intent, agreement or memorandum of
understanding with respect to potential companies for these acquisitions and there is
no circumstance, development or event involving a potential or contemplated merger,
acquisition or disposal by the Company that has not been disclosed in each of the Time of
Sale Prospectus and the Prospectus which must be disclosed therein (i) in order not to make
the Time of Sale Prospectus or the Prospectus misleading; or (ii) to comply with the
requirements of the Act.
(xxxviii) Valid Choice of Law, Submission to Jurisdiction and Appointment of
Process Agent. The choice of the laws of the State of New York as the governing law of
this Agreement and the Deposit Agreement is a valid choice of law under the laws of India
and courts of India should honor this choice of law. The Company has the power to submit,
and pursuant to this Agreement and the Deposit Agreement has validly and irrevocably
submitted to the personal jurisdiction of the United States District Court for the Southern
District of New York and the Supreme Court of New York, New York County (including, in each
case, any appellate courts therefrom) in any suit, action or proceeding against it arising
out of or related to this Agreement or the Deposit Agreement or with respect to its
obligations, liabilities or any other matter arising out of or in connection with the sale
of the ADSs to the Underwriters and has validly and irrevocably waived any objection to the
venue of a proceeding in any such court, and the Company has the power to designate,
appoint and empower, and pursuant to this Agreement and the Deposit Agreement, has validly
appointed the Authorized Agent named in Section 15 of this Agreement, and the process agent
named in the Deposit Agreement for the purposes described therein, and service of process
effected in the manner set forth in Section 15 of this Agreement and the Deposit Agreement
will be effective to confer valid personal jurisdiction over the Company.
(xxxix) No Immunity Under Indian Law. The Company is subject to civil and
commercial law and to suit in India with respect to its obligations under this Agreement,
the Deposit Agreement, and the ADSs; the execution and delivery by the Company and the
performance by the Company of its obligations thereunder constitute private and
15
commercial
acts rather than governmental or public acts and neither the Company nor any of its
properties, assets or revenues has any right of immunity under Indian law from any legal
action, suit or proceeding, from the giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any Indian court, from
service of process, attachment upon or prior to judgment, or attachment in aid of execution
of judgment or from execution of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such court, with respect
to its obligations, liabilities or any other matter under or arising out of or in connection
with this Agreement, the Deposit Agreement and the ADSs, and, to the extent that the Company
or any of the Company’s properties, assets or revenues may have or may hereafter become
entitled to any such right of immunity in any such court in which proceedings may at any
time be commenced, the Company agrees to waive such right to the extent
permitted by law.
(xl) Absence of Labor Dispute. No labor dispute with the employees of the Company or any Significant Subsidiary exists
or, to the best knowledge of the Company, is imminent except as described in each of the
Time of Sale Prospectus and the Prospectus; and the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could have a Material Adverse Effect.
(xli) Environmental Laws. Except as described in the Time of Sale Prospectus
and the Prospectus, the Company and each Significant Subsidiary (A) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”), (B) have received all
permits, licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or approvals
would not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(xlii) Costs Related to Environmental Laws. Except as described in the Time of
Sale Prospectus and the Prospectus, there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(xliii) No Prior Equity Share Issuance. Except as described in each of the
Time of Sale Prospectus and the Prospectus, the Company has not sold, issued or distributed
any Equity Shares during the six-month period preceding the date hereof, including any
sales pursuant to Rule 144A, Regulation D or S under the Act, other than Equity Shares
16
issued pursuant to employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(xliv) Passive Foreign Investment Company. The Company does not expect to be
a passive foreign investment company (“PFIC”) within the meaning of Section 1297 of the
United States Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder for the taxable year (i) ended March 31, 2006, and (ii) ending
March 31, 2007, and has no current plan or intention to conduct its business in a manner
that would reasonably be expected to result in the Company becoming a PFIC in the future
under current laws and regulations.
(xlv) OFAC. Neither the Company nor any Significant Subsidiary (i) does any
business or has any other dealings with the Governments of Angola (UNITA), Burma (Myanmar),
Cuba, Iraq, Iran, Libya, North Korea or Sudan, or any agent or “Specially
Designated National” thereof or with any other person subject to sanctions under any
of the foreign assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating
thereto (collectively, the “Sanctions Laws and Regulations”), or with any person or entity
in those countries, or perform contracts in support of projects in or for the benefit of
those countries or those persons; Neither the Company nor any Significant Subsidiary nor,
to the knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any Significant Subsidiary is currently subject to any U.S. sanctions
administered by OFAC, and the Company will not directly or indirectly use the proceeds of
the Offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xlvi) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the
Company and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA.
(xlvii) Money Laundering. None of the Company, any Significant Subsidiary or,
to the Company’s knowledge, any of its employees or agents, has at any time during the last
five years (i) made any unlawful contribution to any candidate for non-United States
office, or failed to disclose fully any such contribution in violation of law or (ii) made
any payment to any federal provincial or state governmental officer or official, or other
17
person charged with similar public or quasi-public duties, other than payments required or
permitted by the laws of India, the United States or any other jurisdiction. The
operations of the Company and each Significant Subsidiary are and have been conducted at
all times in compliance with applicable financial record-keeping and reporting requirements
of the United States Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statues of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Significant Subsidiary with respect to the
Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xlviii) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any applicable provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications.
(xlix) Pending Proceedings and Examinations. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act
in connection with the Offering.
(l) Reporting Requirement. The Company (a) has been subject to the
requirements of Section 12 or 15(d) of the Exchange Act and has filed all the material
required to be filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act for a period
of at least thirty-six calendar months immediately preceding the date of this Agreement and
(b) has filed in a timely manner all reports required to be filed during the twelve
calendar months and any portion of a month immediately preceding the date of this
Agreement.
(li) Listing Approval. The Company has received in-principle approval of the National Stock Exchange of India Limited to list the Shares,
and such approval is in full force and effect at the date hereof and each Time of
Delivery.
18
Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at the purchase price
per ADS set forth in this subsection (a), that portion of the number of Optional ADSs as to which
such election shall have been exercised (to be adjusted by the Representatives so as to eliminate
fractional shares) determined by multiplying such number of Optional ADSs by a fraction, the
numerator of which is the maximum number of Optional ADSs which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional ADSs that all of the Underwriters are
entitled to purchase hereunder.
SECTION 3. Terms of the Offering. Upon the authorization by the Representatives of the release of
the Firm ADSs, the several Underwriters propose to offer the Firm ADSs for sale to the public upon
the terms and conditions set forth in the Prospectus.
The time and date of such delivery and payment shall be, with respect to the Firm ADSs, 9:00
a.m., New York time, on [November 21], 2006 or such other time and date as the Representatives and
the Company may agree upon in writing, and, with respect to the Optional ADSs, 9:00 a.m. New York
time, on the date specified by the Representatives in the written
19
notice given by the
Representatives of the Underwriters’ election to purchase such Optional ADSs, or such other time
and date as the Representatives and the Company may agree upon in writing. Such time and date for
delivery of the Firm ADSs is herein called the “First Time of Delivery”, such time and date for
delivery of the Optional ADSs, if not the First Time of Delivery, is herein called the “Second Time
of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.
(b) Delivery of Closing Documents. The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross-receipt for
the ADSs and any additional documents requested by the Underwriters pursuant to Section 7 hereof
will be delivered at the offices of Xxxxxx & Xxxxxxx LLP, 00 Xxxxxxx Xxxxx,
#00-00 XXX Xxxxx 0, Xxxxxxxxx 000000 (the “Closing Location”), and the ADSs will be delivered
as specified in subsection (a) above, all at such Time of Delivery. A meeting will be held at the
Closing Location at 9:00 a.m., New York time on the Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the purposes of this
Section 4, “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York or India are generally authorized or obligated
by law or executive order to close.
(i) Filing of Prospectus; Notification and Filing of Amendments; Payment of Filing
Fees. To prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus in the manner and within the applicable period specified in Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Act, or, if applicable, such earlier time as
may be required by Rule 430B under the Act; to make no further amendment or any supplement
to the ADS Registration Statement, the Registration Statement, the Time of Sale Prospectus
or the Prospectus or file a new registration statement with respect to the Shares and the
ADSs prior to the last Time of Delivery which shall be disapproved by the Representatives
promptly after reasonable notice thereof, provided, however, that the Representatives shall
not unreasonably withhold approval of the amendment or supplement to the Registration
Statement; to give the Representatives notice of any filings made pursuant to the Exchange
Act or the rules and regulations thereunder within 48 hours prior to the Applicable Time,
to give the Representatives notice of its intention to make any such filing from the
Applicable Time to the First Time of Delivery and to furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed filing, as
applicable, to advise the Representatives promptly after it receives notice thereof of the
time when any amendment to the ADS Registration Statement or the Registration Statement has
been filed or becomes effective, or a new registration statement with respect to the Shares
or the ADSs has been filed or becomes effective, or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives with copies thereof;
to advise the Representatives at any time it becomes an “ineligible issuer”, as
20
defined in
Rule 405 under the Act; to file promptly all reports required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the Offering; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any preliminary prospectus or Prospectus, of the
suspension of the qualification of the Shares or the ADSs for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purposes or
of any examination pursuant to Section 8(e) of the Act concerning the Registration
Statement, if the Company becomes the subject of a proceeding under Section 8A of the Act
in connection with the offering of the ADSs or the Shares, or of
any request by the Commission for the amending or supplementing of the Registration
Statement, any preliminary prospectus, the Prospectus or any document incorporated by
reference therein or for additional information; and, in the event of the issuances of any
stop order or of any order preventing or suspending the use of any preliminary prospectus
or Prospectus or suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order. The Company shall pay the required Commission filing
fees relating to the Shares and the ADSs within the time required by Rule 456(b)(1) (i)
under the Act without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) under the Act.
(ii) Qualification of ADSs for Offer and Sale. To take such action as the
Representatives may reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the ADSs,
provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or to file a
general consent to service of process in any jurisdiction or to subject it to taxation in
respect of doing business in any jurisdiction in which it is not otherwise subject.
(iii) Delivery of Prospectuses. (A) If the Time of Sale Prospectus is being
used to solicit offers to buy the ADSs at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus in order to make the
statements therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts
with the information contained in the Registration Statement then on file, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of
Sale Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with law.
21
(B) If, during such period after the first date of the public offering of ADSs as in
the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Act) is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Representatives will furnish
to the Company) to which ADSs may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Act) is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with applicable law.
(C) As soon as practicable but not later than the second New York business day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City or such other place as the Representatives
may specify in such quantities as the Representatives may reasonably request.
(iv) Earnings Statement. To make generally available to its security holders
and to deliver to the Representatives as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and its Significant
Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(v) Lock-Up. During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, not to, and not to
announce its intention to, directly or indirectly, issue, offer, sell, contract to sell,
grant any option to purchase, make any short sale or otherwise dispose of any Equity Shares
or ADSs or any securities convertible into, exchangeable for or that represent the right to
receive Equity Shares or ADSs, without the Representatives’ prior written consent, except
(A) pursuant to any employee stock option plan that has been or may be adopted by the
Company and disclosed to the Representatives prior to the date hereof or (B) with respect
to any Equity Shares to be issued as an annual dividend or annual bonus issue to directors,
supervisors and employees which is approved by the Company’s shareholders. The Company will
not facilitate any conversions or exchanges of Equity Shares into ADSs during this 180-day
period. Notwithstanding the foregoing, if (1) during the last 17 days of the restricted
period the Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior
22
to the expiration of the restricted period, the Company
announces that it will release earnings results during the 16 day period beginning on the
last day of the restricted period, the restrictions imposed in this clause (v) shall
continue to apply until the expiration of the 18 day period beginning on the issuance of
the earnings release or the occurrence of the material news or material event.
(vi) Annual Reports. To furnish to the Depositary for mailing to all holders
of record of ADRs as soon as practicable after the end of each fiscal year an annual report
(in English) (including a balance sheet and statements of income, shareholders’ equity and
cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants and prepared in conformity with U.S. GAAP or Indian
GAAP, as applicable) and to file with Commission on a timely basis for each year an annual
report on Form 20-F, which conforms in all material respects to the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder.
(vii) No Stabilization Action. Not to (and to cause its Significant
Subsidiaries and affiliates not to) take, directly or indirectly, any action which is
designed to or which constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company or facilitate
the sale or resale of the Shares and the ADSs.
(viii) Listing. To cause (a) the ADSs to be listed on the New York Stock
Exchange (the “NYSE”) and (b) the Shares underlying the ADSs to be listed on the Bombay
Stock Exchange Limited and the National Stock Exchange of India Limited within 45 days from
the date of each Time of Delivery.
(ix) Approvals by Governmental Agencies. To make any post-closing filing,
notice or undertaking requested or required by any governmental agencies (including the
post closing report to be filed with the Reserve Bank of India within 30 days of closing of
the Offering and any filings required by the Indian stock exchanges) with respect to the
transactions contemplated by this Agreement.
(x) Continued Compliance with Applicable Securities Laws. To comply with, or
obtain waivers of all applicable requirements of U.S. and Indian law, including, without
limitation, the Act and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, the Investment Company Act, the rules and regulations of NASD and
any requests of the Commission so as to permit the completion of the transactions
contemplated by this Agreement, the Deposit Agreement, the Time of Sale Prospectus and the
Prospectus.
(xi) Reporting Requirements. To file, during the period when the Prospectus is
required to be delivered under the Act, on a timely basis, with the Commission all reports
and documents required to be filed pursuant to the Exchange Act and the rules and
regulations of the Commission promulgated thereunder.
(xii) Stamp Duty or Other Taxes. To pay any stamp, issue, registration,
documentary or other taxes and duties, including interest and penalties, payable in India
23
or otherwise, on or in connection with the issue, offer or sale of the ADSs or the
execution, delivery, performance or enforcement of this Agreement and the Deposit Agreement
as well as any sales, value added or similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be deemed to include any such taxes so
payable in addition to it) which are or may be required to be paid under the laws of India
and the United States or any political subdivision or taxing authority of or in any such
jurisdiction.
(xii) No Fiduciary Relationship. The Company acknowledges and agrees
that (A) the purchase and sale of the ADSs pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other, (B) in connection therewith and with the process leading to such transaction
each Underwriter is acting solely as a principal and not the agent or fiduciary of the
Company, (C) no Underwriter has assumed an advisory or fiduciary responsibility in favor of
the Company with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) or any other obligation to the Company except the obligations expressly
set forth in this Agreement and (D) the Company has consulted its own legal and financial
advisors to the extent it deemed appropriate. The Company agrees that it will not claim
that the Underwriters, or any of them, has rendered advisory services of any nature or
respect or owes a fiduciary or similar duty to the Company, in connection with the offering
of the ADSs or the process leading thereto.
(l) Issuer Free Writing Prospectuses. The Company represents and agrees that,
unless it obtains the prior consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior consent of the Company and the Representatives,
it has not made and will not make any offer relating to the Shares and the ADSs that would
constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus consented to by the Company and
the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents that it has treated or agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping.
(xvi) OFAC. To not use the proceeds from the sale of the ADSs, directly or
indirectly, (A) for any purpose or activity that would violate, or cause any person
associated with the Offering to violate the Sanctions Laws and Regulations, or (B) in
connection with business, operations or contracts within the countries, or with the
governments or with any person or entity, in each case that are prohibited by the Sanctions
Laws and Regulations, or in connection with contracts in support of projects in or for the
benefit of such countries, governments, persons or entities.
24
(xvii) Money Laundering Laws. The Company will, and will cause each
Significant Subsidiary to, conduct its business and operations at all times in compliance
with the Money Laundering Laws.
(xviii) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the ADSs in the manner specified in the Time of Sale Prospectus under “Use
of Proceeds”.
(i) Free Writing Prospectuses. Each Underwriter severally covenants with the
Company, unless it obtains the prior written consent of the Company, not to take any action
that would result in the Company being required to file with the Commission under Rule
433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action
of the Underwriter.
SECTION 6. Payment of Expenses. The Company covenants and agrees with the several
Underwriters that (a) the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in connection with the
registration of the ADSs under the Act (including all fees, disbursements and expenses of the
Company’s counsel associated with the review and approval of the Offering by Indian federal,
central, state and local authorities) and all other expenses in connection with the preparation,
printing and filing of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the ADS Registration Statement (including
exhibits), any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free
writing prospectus prepared by or on behalf of, used by, or referred to by the Company, any
Permitted Free Writing Prospectus and amendments and supplements thereto, including all printing,
graphic and document production and translation costs associated therewith, and the mailing and
delivering of copies thereof to its shareholders or to the Underwriters and dealers, as the case
may be, including any costs associated with electronic delivery of any of the foregoing by the
Underwriters to investors; (ii) the cost of preparing, printing, producing, filing and delivering
any Agreement among Underwriters, this Agreement, the Deposit Agreement, the Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in connection with the
Offering, purchase, sale and delivery of the ADSs; (iii) all expenses in connection with the
qualification or registration (or of obtaining exemptions from the qualification and registration)
of the ADSs for offering and sale under U.S. state securities laws, including the fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky surveys; (iv) the filing fees incident to securing any required review
by the NASD of the terms of the sale of the ADSs; (v) the fees and expenses incurred in connection
with admitting the ADSs for clearance and settlement on the facilities of DTC; (vi) all expenses,
including the cost of printing or producing any non-U.S. legal investment memorandum, in connection
with the qualification of the ADSs for offer and sale under foreign (non-U.S. federal or state)
securities laws; (vii) the preparation, issuance and delivery of the ADR certificates evidencing
ADSs to the Underwriters, including any stamp, transfer or other taxes payable thereon, and in
connection with the sale of the ADSs by the Underwriters to the initial purchasers thereof in the
manner contemplated under this Agreement,
25
including, in any such case under this Agreement, any
income, capital gains, withholding, transfer or other tax asserted against an Underwriter by reason
of the purchase and sale of an ADS or Share pursuant to this Agreement; (viii) the fees and
expenses (including fees and disbursements of counsel), if any, of the Depositary and the Indian
Domestic Custodian appointed under the Deposit Agreement; (ix) the fees and expenses of the
Authorized Agent (as defined in Section 15 hereof), if any; (x) all fees and expenses in connection
with listing the ADSs on the NYSE; (xi) the costs and expenses (including without limitation any
damages or other amounts payable in connection with legal or contractual liability) associated with
the reforming of any contracts for sale of the ADSs made by the Underwriters caused by a breach of
the representation contained in Section 1(viii) hereof; (xii) the costs and expenses
(including without limitation any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale of the Shares and
the ADSs made by the Underwriters caused by a breach of representation contained in Section 1(ii)
hereof; (xiii) all costs and expenses relating to investor presentations on any “road show” and
electronic roadshow undertaken in connection with the marketing of the Offering, including, without
limitation, cost of road show venues, within city local conveyance, meals, lodging expenses, and
other related expenses incurred by members of the Company’s management, and the cost of any
aircraft chartered in connection with the road show, if applicable (“Roadshow Expenses”); provided
that the Underwriters will pay their own costs and expenses in connection with any such “road show”
and electronic roadshow, and a portion of the Company’s expenses relating to the Offering not to
exceed $[ ], and the fees, disbursements and expenses of the Underwriters’ counsel. If, however,
the transactions contemplated in this Agreement are not consummated or this Agreement is
terminated, the Company covenants and agrees with the several Underwriters to pay or cause to be
paid all of the Underwriters’ roadshow expenses and fees, disbursements and expenses of the
Underwriters’ counsel.
SECTION 7. Conditions to the Underwriters’ Obligations. The obligations of the Underwriters
hereunder, as to the ADSs to be delivered at each Time of Delivery shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein are, at and as of such Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
26
reasonably request, and such
counsel shall have received such papers and information as they may reasonably request to enable
them to pass upon such matters.
(d) Opinion of Xxxxxxxx Xxxxxx & Co. Xxxxxxxx Xxxxxx & Co., India counsel for the Company,
shall have furnished to the Representatives their written opinion, dated such Time of Delivery, in
form and substance satisfactory to the Representatives as attached hereto as Annex II.
(i) the Deposit Agreement (including all amendments and supplements thereto) has been
duly authorized, executed and delivered by the Depositary and constitutes a valid and
legally binding obligation of the Depositary, enforceable in accordance with its terms,
except insofar as enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other laws relating to creditors’ rights generally and general principles of
equity; and
(ii) when ADRs evidencing ADSs are issued in accordance with the Deposit Agreement
against the deposit, pursuant to the terms of the Deposit Agreement, of duly authorized,
validly issued, fully paid and non-assessable Shares of the Company, such ADRs will be duly
and validly issued and will entitle the holders thereof to the rights specified therein and
in the Deposit Agreement.
27
28
The Representatives may at their sole discretion, and on behalf of the Underwriters, waive
compliance with any of the conditions specified in this Section 7. If any condition specified in
this Section 7 shall not have been fulfilled when and as required to be fulfilled, and such
condition shall not have been waived by the Representatives pursuant to this Section, this
Agreement, or, in the case of any condition to the purchase of the Optional ADSs on a Time of
Delivery which is after the First Time of Delivery, the obligations of the several Underwriters to
purchase the relevant Optional ADSs may be terminated by the Representatives by notice to the
Company at any time at or prior to the relevant Time of Delivery, and such termination shall be
without liability of any party to any other party except as provided in Section 6 and except that
Sections 1, 8 and 10 shall survive any such termination and remain in full force and effect.
(i) against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act, the Exchange Act or other United States federal or
state statutory law or regulation, the Indian common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (A) arise out of or are based in
whole or in part upon an untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), the ADS Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, or (B) arise out of or are based in whole or in
part upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any such losses, claims, damages or liabilities, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subclause (a)(i) or (ii) above;
provided, however, that this Section 8(a) shall not apply to any such losses, claims, damages or
liabilities arising out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with information
29
furnished to
the Company in writing by any Underwriter through the Representatives expressly for use therein.
30
31
(a) If any Underwriter shall default in its obligation to purchase ADSs which it has agreed to
purchase hereunder at a Time of Delivery, the Representatives may in its discretion arrange for the
Representatives or another party or other parties to purchase such ADSs on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such ADSs, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such ADSs on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that the Representatives have so
arranged for the purchase of such ADSs, or the Company notify the Representatives that they have so
arranged for the purchase of such ADSs, the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement, the ADS Registration Statement, the Time of Sale
Prospectus, the Prospectus, or in any other documents or arrangements, and the Company agrees to
prepare and file promptly any amendments to the Registration Statement, the ADS Registration
Statement, the Time of Sale Prospectus, or the Prospectus, which in the opinion of the
Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement
shall include any person substituted under this Section 9 with like effect as if such person had
originally been a party to this Agreement with respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of the ADSs of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a)
above, the aggregate number of such ADSs which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the ADSs to be purchased at such Time of Delivery, then the
non-defaulting Underwriters shall be severally obligated to purchase its pro rata share (based on
the number of ADSs which such Underwriter agreed to purchase hereunder) of the ADSs of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, at the Time of Delivery, the aggregate number of such ADSs which remains unpurchased
exceeds one-eleventh of the aggregate number of all of the ADSs to be purchased at such Time of
Delivery and any Underwriter or Underwriters shall fail or refuse to purchase such ADSs and
arrangements satisfactory to the Representatives and the Company for the purchase of such ADSs are
not made within thirty-six hours of such default, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters to purchase and of
32
the Company to sell
the Optional ADSs) shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
SECTION 10. Representations, Warranties and Agreements to Survive. The respective indemnities,
agreements, representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any Underwriter, its
directors, officers, employees or agents, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company and shall survive delivery
of and payment for the ADSs.
SECTION 11. Liability of Company in the event of a Default by any Underwriter. If this Agreement
shall be terminated pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter except as provided in Sections 6 and 8 hereof; but if for any other reason any
ADSs are not delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of pocket expenses reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the ADSs
not so delivered, but the Company shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8 hereof.
SECTION 12. Termination. The Representatives may terminate this Agreement, by notice to the
Company, and, after consultation with the Company, at any time at or prior to the First Time of
Delivery (a) if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Time of Sale Prospectus, any material
adverse change in the condition, financial or otherwise, or in the earnings, business, management,
operations or prospects of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, or (b) if there has occurred any material adverse
change in the financial markets in the United States, Europe, Russia or India or the international
financial markets, any outbreak of hostilities or terrorism or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in the United States, Indian
or international political, financial or economic conditions (including a declaration by the United
States or India of a national emergency or war) or currency exchange rates or exchange controls, in
each case the effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the ADSs or to enforce contracts for the purchase or sale of
the ADSs, or (c) if trading in any securities of the Company (including the Equity Shares or the
ADSs) has been suspended or materially limited by the Commission or the Indian Exchanges or the
NYSE, or if trading generally on the Indian Exchanges, the American Stock Exchange, Nasdaq National
Market or the NYSE has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the NASD or any
other governmental authority, or (d) if a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United
33
States or India or with
respect to Clearstream or Euroclear systems in Europe, or (e) if a banking moratorium has been
declared by either Indian, United States Federal, United Kingdom or New York authorities. Any
termination pursuant to this Section 12 shall be without liability on the part of (i) the Company
to any Underwriter, except that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters pursuant to Section 6 hereof, (ii) any Underwriter to the
Company, or (iii) of any party hereto to any other party except that the provisions of Sections 6
and 8 shall at all times be effective and shall survive such termination.
SECTION 13. Notices. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or given by the
Representatives jointly.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to each of the
Representatives to (i) c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4 World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX, Attention: [ ], fax [ ]; and (ii)
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General
Counsel, fax (000) 000-0000; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Registration Statement,
Attention: [Chief Financial Officer]; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
SECTION 14. Benefits of Agreement. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company, and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company, the directors, officers, employees and agents of
any Underwriter, and each person who controls the Company, or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any of the ADSs from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
34
SECTION 15. Jurisdiction; Consent to Service. Each of the parties hereto irrevocably (a) agrees
that any legal suit, action or proceeding against the Company brought by any Underwriter or by any
person who controls any Underwriter arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any federal or state court in the Borough of Manhattan,
The City of New York (a “New York Court”), (b) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of any such proceeding
and (c) submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed Xx. Xxxxx’x Laboratories, Inc., 200 Somerset Corporate
Boulevard (Building II), Xxxxxxxxxxx, Xxx Xxxxxx 00000, as its authorized agent (the “Authorized
Agent”) upon whom process may be served in any such action arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in any New York Court by
any Underwriter or by any person who controls any Underwriter. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized Agent has agreed to act as
such agent for service of process and agrees to take any and all action, including the filing of
any and all documents and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the party that has appointed it shall be deemed, in every respect, effective
service of process upon the Company.
The Company irrevocably waives any right of immunity it may have or may hereafter become
entitled to, or have attributed to it, on the grounds of sovereignty (including any immunity from
the non-exclusive jurisdiction or from service of process or from any execution to satisfy a final
judgment or from attachment in aid of such execution) or claim thereto which may now or hereafter
exist, and agrees not to assert any such right or claim in any action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated herein which may be
instituted by any Underwriter in any State or Federal court in The City of New York or any
competent court in India.
SECTION 16. Judgment Currency. In respect of any judgment or order given or made for any
amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than
United States dollars, the Company will indemnify each Underwriter and the Underwriters will
indemnify the Company against any loss incurred by such Underwriter as a result of any variation as
between (a) the rate of exchange at which the United States dollar amount is converted into the
judgment currency for the purpose of such judgment or order and (b) the rate of exchange at which
an Underwriter or the Company, as applicable, are able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter or the Company, as
applicable. The foregoing indemnity shall constitute a separate and independent obligation of each
of the Underwriters or the Company and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and
costs of exchange payable in connection with the purchase of or conversion into United States
dollars.
SECTION
17. Time. Time shall be of the essence of this Agreement.
SECTION 18. Entire Agreement. This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the Offering, represents the entire agreement
35
between the Company and the Underwriters
with respect to the preparation of the preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the Offering and the purchase and sale of the ADSs.
SECTION 19. Applicable Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 20. Counterparts. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 21. Headings. The headings of the sections of this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
SECTION 22. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
36
If the foregoing is in accordance with the Representatives’ understanding, please sign and
return to us one original or counterpart hereof for the Company and each of the Representatives of
the Underwriters plus one for each counsel and the Depositary, and upon the acceptance hereof by
the Representatives, on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the Company. It is
understood that the Representatives’ acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the
form of which shall be submitted to the Company for examination upon request, but without warranty
on the Representatives’ part as to the authority of the signers thereof.
| Very truly yours, | ||||||
| XX. XXXXX’X LABORATORIES LIMITED | ||||||
| By: | ||||||
| Name: Xx. X.X. Xxxxxx | ||||||
| Title: CEO | ||||||
37
CONFIRMED AND ACCEPTED
as of the date first above written
as of the date first above written
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
By:
|
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX | |||||
| INCORPORATED | ||||||
By: |
||||||
| Name: | ||||||
| Title: | ||||||
By:
|
CITIGROUP GLOBAL MARKETS INC. | |||||
By: |
||||||
| Name: | ||||||
| Title: |
For themselves and as Representatives of the other Underwriters named in Schedule I hereto.
38
SCHEDULE I
| Number of | |||||||||||
| Optional ADSs to | |||||||||||
| Total Number of | be Purchased if | ||||||||||
| Firm ADSs to be | Maximum | ||||||||||
| Name of Underwriter | Purchased | Option Exercised | |||||||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
|||||||||||
Citigroup Global Markets Inc. |
|||||||||||
Total |
|||||||||||
Schedule I
SCHEDULE II
Free Writing Prospectuses
| 1. | Preliminary Prospectus issued November 13, 2006 | |
| 2. | [identify all free writing prospectuses filed by the Company under Rule 433(d) of the Act] | |
| 3. | following orally communicated pricing information: | |
| The public offering price of the ADSs shall be US$ per ADS Offering size: [13,500,000] ADSs, representing [13,500,000] Equity Shares |
Schedule II
SCHEDULE III
List of Significant Subsidiaries
DRL Investments Limited
Reddy Pharmaceuticals Hong Kong Limited
XX Xxxxx Biomed Limited
Reddy Antilles N.V.
Reddy Netherlands B.V.
Reddy US Therapeutics, Inc.
Xx. Xxxxx’x Laboratories, Inc.
Xx. Xxxxx’x Farmaceutica do Brasil Ltda
Cheminor Investments Limited
Aurigene Discovery Technologies Limited
Aurigene Discovery Technologies, Inc.
Kunshan Rotam Reddy Pharmaceutical Co. Limited
Xx. Xxxxx’x Laboratories (EU) Limited
Xx. Xxxxx’x Laboratories (U.K.) Limited
Xx. Xxxxx’x Laboratories (Proprietary) Limited
Reddy Cheminor S.A
Xx. Xxxxx’x Bio-sciences Limited
Reddy Pharmaceuticals, LLC
Trigenesis Therapeutics, Inc.
Industrias Quimicas Falcon de Mexico, SA de XX
Xxxxx Holding GmbH
Lacock Holdings Limited
betapharm Arzneimittel GmbH
beta Healthcare Solutions GmbH
beta institut fur sozialmedizinische Forschung und Entwicklung GmbH
Reddy Pharma Iberia, S.A.
Reddy Pharmaceuticals Hong Kong Limited
XX Xxxxx Biomed Limited
Reddy Antilles N.V.
Reddy Netherlands B.V.
Reddy US Therapeutics, Inc.
Xx. Xxxxx’x Laboratories, Inc.
Xx. Xxxxx’x Farmaceutica do Brasil Ltda
Cheminor Investments Limited
Aurigene Discovery Technologies Limited
Aurigene Discovery Technologies, Inc.
Kunshan Rotam Reddy Pharmaceutical Co. Limited
Xx. Xxxxx’x Laboratories (EU) Limited
Xx. Xxxxx’x Laboratories (U.K.) Limited
Xx. Xxxxx’x Laboratories (Proprietary) Limited
Reddy Cheminor S.A
Xx. Xxxxx’x Bio-sciences Limited
Reddy Pharmaceuticals, LLC
Trigenesis Therapeutics, Inc.
Industrias Quimicas Falcon de Mexico, SA de XX
Xxxxx Holding GmbH
Lacock Holdings Limited
betapharm Arzneimittel GmbH
beta Healthcare Solutions GmbH
beta institut fur sozialmedizinische Forschung und Entwicklung GmbH
Reddy Pharma Iberia, S.A.
Schedule III
SCHEDULE IV
Persons and Entities subject to Lock-up
Directors and Executive Officers
Xx. X.X. Xxxxxx
Dr. K. Xxxx Xxxxx
Mr. Xxxxxx Xxxxx
Dr. K. Xxxx Xxxxx
Mr. Xxxxxx Xxxxx
Xx. Xxxxx’x Holdings Private Limited
Schedule IV
Schedule V
EXHIBIT A
[FORM OF LOCK-UP LETTER]
[DATE], 2006
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the several Underwriters named in
Schedule I attached to the Underwriting Agreement
Schedule I attached to the Underwriting Agreement
Dear Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters named in
an Underwriting Agreement (the “Underwriting Agreement”) with Xx. Xxxxx’x Laboratories Limited,
incorporated in the Republic of India (the “Company”), providing for the public offering (the
“Public Offering”) by the several Underwriters (the “Underwriters”), of [13,500,000] American
depositary shares (the “ADSs”), each representing one equity share, par value Rs. 5 per share, of
the Company (the “Equity Shares”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant or exercise any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, or file or cause to be filed a registration
statement, or exercise any registration right, in respect of, any ADSs or equity shares or any
securities convertible into or exchangeable or exercisable for any ADSs or equity shares, or any
similar securities, or (2) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of ADSs or equity shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of ADS or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)] transactions
relating to shares of ADS or other securities acquired in open market transactions after the
completion of the Public Offering, provided that no filing under Section 16(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) shall be required or shall be voluntarily
made in connection with subsequent sales of ADS or other securities acquired in such open market
transactions , (b)
Exhibit
A - I
transfers of shares of ADS or any security convertible into ADS as a bona fide gift or (c)
distributions of shares of ADS or any security convertible into ADS to limited partners or
stockholders of the undersigned; provided that in the case of any transfer or distribution pursuant
to clause (b) or (c), (i) each donee or distributee shall sign and deliver a lock-up letter
substantially in the form of this letter and (ii) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of shares of ADS, shall be required or shall be
voluntarily made during the restricted period referred to in the foregoing sentence]. In addition,
the undersigned agrees that, without the prior written consent of the Representatives on behalf of
the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days
after the date of the Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of ADS or any security convertible into or exercisable or exchangeable
for ADS. The undersigned also agrees and consents to the entry of stop transfer instructions with
the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of ADS
except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event; provided that in the case of clause (2) above, if no earnings results are
released during the 16-day period, the lock-up will terminate on the last day of the 16-day period.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the Company or the
Representatives that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
If for any reason the Company and the Underwriters agree in writing that they do not intend to
proceed with the Public Offering, this lock-up letter shall terminate from the date of such
agreement.
Exhibit
A - II
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
| Very truly yours, | ||||
Exhibit
A - III
Annex I
FORM OF OPINION OF COMPANY’S UNITED STATES COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 7(c)
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(Note that terms used, but not defined, in this Annex I shall have the meanings assigned to
them in the body of the Underwriting Agreement or otherwise assigned to them in the written opinion
of Xxxxxxxx Chance XX XXX)
Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx Counsel for the Company, shall have furnished to the
Representatives their written opinion, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that:
| 1. | The Underwriting Agreement has been duly executed and delivered by the Company in accordance with the laws of the State of New York. | |
| 2. | The Deposit Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyances, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles). | |
| 3. | Upon due execution and delivery by the Depositary of the ADRs representing the ADSs against the deposit of the Shares in respect thereof in accordance with the provisions of the Deposit Agreement, and upon payment by the Underwriters for the ADSs evidenced thereby in accordance with the provisions of the Underwriting Agreement, such ADRs will be duly and validly issued and the persons in whose names such ADRs are registered will be entitled to the rights specified therein and in the Deposit Agreement. No holder of the ADSs is or will be subject to personal liability by reason of being such a holder, and the ADSs conform in all material respects to the descriptions thereof in the Time of Sale Prospectus and the Prospectus. | |
| 4. | No consent, approval, authorization or order of, or filing with, any U.S. federal or New York state governmental agency or regulatory body or court is required for the execution and delivery of the Underwriting Agreement or the Deposit Agreement in connection with the issuance and sale of the Shares by the Company and the ADSs pursuant to the Deposit Agreement, except such as have been obtained and made under the Securities Act, and except as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions. | |
| 5. | The execution, delivery and performance of the Underwriting Agreement and the Deposit Agreement and the issuance and sale of the ADSs and the Shares will not result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) any U.S. federal or New York state law or any rule or regulation thereunder, (ii) any order of any U.S. federal or New York state governmental agency or body or any U.S. federal or New York state court having jurisdiction over the Company, in each case of the type of rule, regulation or order that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated in the Underwriting Agreement and the Deposit Agreement, or (iii) any agreement that is expressed to be governed solely by the laws of the State of New York to which the Company is party as at the date of this letter, but we express no opinion as to Section 8 (Indemnification) of the Underwriting Agreement or Section 16 (Indemnification) of the Deposit Agreement or as to the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions. |
Annex
I - 1
| 6. | To the best of our knowledge, there is not any legal or governmental action, suit or proceeding under the federal laws of the United States and the laws of the State of New York pending or threatened against the Company or its subsidiaries, or any of their respective properties or assets that, if determined adversely to the Company, would reasonably be expected to have a Material Adverse Effect, or could reasonably be expected materially and adversely to affect the ability of the Company to perform its obligations under the Underwriting Agreement. |
| 7. | The Company is not and, after giving effect to the offering and sale of the ADSs and the application of the proceeds thereof, as described in each of the Time of Sale Prospectus and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940. |
| 8. | Under the laws of the State of New York relating to submission to jurisdiction, the Company has, pursuant to Section 15 of the Underwriting Agreement, validly and irrevocably submitted to the non-exclusive jurisdiction of any New York state or U.S. federal court located in the Borough of Manhattan, The City of New York, New York, in connection with any proceeding arising out of or related to the Underwriting Agreement to the extent permitted by law, waived any objection to the venue of a proceeding in any such court with respect to the Underwriting Agreement, and the Company has validly appointed Xx. Xxxxx’x Laboratories, Inc. as their authorized agent for the purposes described in the Underwriting Agreement. Service of process effected in the manner set forth in the Underwriting Agreement will be effective to confer valid personal jurisdiction over the Company in any such action. |
| 9. | To the best of our knowledge, there are no legal or governmental proceedings pending or threatened to which the Company is a party that are required to be described or incorporated in the Registration Statement, the Time of Sale Prospectus or the Prospectus other than those described therein; and the descriptions thereof are accurate in all material respects. |
| 10. | Except as set forth in paragraph (11) below, which matters are not addressed in this paragraph (10), (i) the Registration Statement, including without limitation the Rule 430B information, as of the date it became effective, and the Prospectus, as of its date, [and each amendment or supplement to the Registration Statement and the Prospectus, as of their respective effective dates or issue dates (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act)], appeared on their face to be appropriately responsive in all material respects to the requirements under the Securities Act and the rules and regulations of the Commission thereunder; (ii) the Form F-6 (No. 333-138547) relating to the ADSs (the “ADS Registration Statement”), as of the date it became effective, appeared on its face to be appropriately responsive in all material respects to the requirements for a registration statement on Form F-6 under the Securities Act and the rules and regulations of the Commission thereunder; and (iii) the documents incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, when they became effective or were filed with the Commission, appeared on their face to be appropriately responsive in all material respects to the requirements under the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, it being understood, however, that we express no opinion with respect to the financial statements, schedules or other financial data included in or omitted from, the |
Annex
I - 2
| Registration Statement, the ADS Registration Statement, the Time of Sale Prospectus and the Prospectus. | ||
| 11. | The statements contained in the Time of Sale Prospectus and the Prospectus under the caption “Description of American Depositary Shares,” insofar as they purport to constitute a summary of the terms of the ADSs and to describe or summarize certain provisions of the Deposit Agreement, and under the caption “Shares Eligible for Future Sales,” insofar as they purport to describe or summarize certain provisions of the agreements referred to therein, provides a fair summary of such provisions in all material respects. | |
| 12. | The statements contained in the Time of Sale Prospectus and the Prospectus under the captions “Taxation – United States Federal Taxation,” to the extent it constitutes matters of U.S. federal income tax law or legal conclusion and subject to the limitations and assumptions contained therein, is accurate in all material respects. | |
| 13. | To the best of our knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described in the Time of Sale Prospectus, the Prospectus or the Registration Statement or to be filed as exhibits to the Registration Statement other than those described therein; and the descriptions thereof are accurate in all material respects. | |
| 14. | To the best of our knowledge, there are no persons with registration rights or other similar rights to have any Shares and the ADSs registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act. | |
| 15. | The Company meets the requirements for use of Form F-3 under the Securities Act. |
In addition, we have participated in the preparation of the Registration Statement and the Prospectus and in conferences with officers and other representatives of the Company, counsel to the Company, representatives of the independent public accountants for the Company and you and your representatives, at which the contents of the Registration Statement, Time of Sale Prospectus, the Prospectus and related matters were discussed, and we have reviewed certain corporate records, documents and proceedings. On the basis of the information that came to our attention in the course of such review and discussions, considered in light of the experience we have gained in our practice under the United States federal securities laws, we confirm that no information has come to our attention that caused us to believe that (x) the Registration Statement or the ADS Registration Statement (including the documents incorporated by reference therein), as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (y) the Prospectus (including the documents incorporated by reference therein), as of its date or the date of this letter, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (z) the Time of Sale Prospectus, as of the Applicable Time or as of the date of this letter (including the documents incorporated by reference therein), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (it being understood in respect of (x), (y) and (z) above that we express no belief with respect to the financial statements and schedules and any other financial data contained or incorporated by reference in the Registration Statement, the ADS Registration Statement, the Time of Sale Prospectus or the Prospectus).
In addition, we confirm to you that, having made inquiry of the Commission, the Registration Statement and the ADS Registration Statement are effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)(i) (without reference to Rule 424(b)(8); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and no stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or any part thereof or any amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act.
Annex
I - 3
Annex II
FORM OF OPINION OF COMPANY’S INDIAN COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 7(d)
TO BE DELIVERED PURSUANT TO SECTION 7(d)
(Note that terms used, but not defined, in this Annex II shall have the meanings assigned to
them in the body of the Underwriting Agreement or otherwise assigned to them in the written opinion
of Xxxxxxxx Xxxxxx & Co.)
Xxxxxxxx Xxxxxx & Co., India counsel for the Company, shall have furnished to the
Representatives their written opinion, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that:
(a) The Company and each Significant Subsidiary has been duly incorporated and is
validly existing as a public limited company in good standing under the laws of the Republic of
India, with corporate authority to own or lease its properties and conduct its business as
described in the Time of Sale Prospectus and the Prospectus and to perform its obligations under
the Underwriting Agreement and the Deposit Agreement.
(b) The Company has an authorized, issued and outstanding capital as set forth in
each of the Time of Sale Prospectus and the Prospectus in the column entitled “Actual” under the
caption “Capitalization” and under the heading “Description of Equity Shares”; and all of the
issued shares of capital stock of the Company (including the Shares) have been duly and validly
authorized and issued, fully paid and non-assessable, and were not issued in violation of any
preemptive or similar rights of any person or entity against the Company; all of the Shares when
delivered in accordance with the terms of this Agreement, will be fully paid; all such capital
complies as to legal matters to the description thereof contained in the Time of Sale Prospectus;
all of the issued and outstanding Equity Shares (including the Shares) have been duly listed and
admitted for trading on the Indian Exchanges.
Annex
II - 1
(c) No holder of Equity Shares is, or will be, subject to personal liability by
reason of being such holder; the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to acquire the Shares or the ADSs in connection with the
transactions contemplated in the Underwriting Agreement or otherwise; the Shares, when deposited
pursuant to the Deposit Agreement in accordance with the Underwriting Agreement, will continue to
be validly issued and outstanding and fully paid and will entitle the holders thereof to the rights
specified in the ADSs, the ADRs and the Deposit Agreement; and there are no liens or encumbrances
on the Shares or the ADSs and no restrictions on subsequent transfers of Shares or the ADSs, except
as described in each of the Time of Sale Prospectus and the Prospectus under “Description of Equity
Shares”, “Description of the American Depositary Shares”, “Regulations and Restrictions on Foreign
Ownership of Indian Securities”, “Government of India Approvals” and “Shares Eligible For Future
Sale”; the Shares and the ADSs conform to the description of the Equity Shares and the ADSs (as to
matters of Indian law), respectively, contained in each of the Time of Sale Prospectus and the
Prospectus; the ADSs and the ADRs conform to the requirements of the Deposit Agreement and the
Indian Exchanges and to the description thereof under the headings “Description of Equity Shares”
and “Description of the American Depositary Shares” in each of the Time of Sale Prospectus and the
Prospectus.
(d) Each of the Underwriting Agreement and the Deposit Agreement has been duly
authorized, executed and delivered by the Company; the Underwriting Agreement and the Deposit
Agreement, assuming they are valid and binding agreements under the laws of the State of New York
by which they are expressed to be governed, each constitutes a valid and legally binding agreement
of the Company enforceable in accordance with their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfer), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights and except as enforcement thereof is subject to general equity principles
(regardless of whether enforcement is considered in a proceeding in equity or at law).
(e) The Deposit Agreement, ADSs and ADRs conform to the description thereof in each
of the Time of Sale Prospectus and the Prospectus; the Underwriters, the Depositary and any holder
or owner of ADSs or ADRs issued under the Deposit Agreement are each entitled to xxx as plaintiff
in the Indian courts for the enforcement of its respective rights against the Company, under such
agreements, as applicable, and such access will not be subject to any conditions which are not
applicable to Indian persons; the voting arrangement set forth in the Deposit Agreement is valid,
binding and enforceable against owners and beneficial owners of the ADSs and ADRs under Indian
laws; the Depositary will not be deemed under Indian law to be authorized to exercise any
discretion when voting in accordance with the Deposit Agreement and such voting arrangement does
not violate any applicable Indian law.
Annex
II - 2
(f) To the best of our knowledge after making due inquiry with the Company and
conducting follow up inquiries as we have determined necessary or appropriate and relying on the
certification provided by the Company, the Company and its Significant Subsidiaries own, or duly
applied for the issuance of, all the patents, trademarks, trade names, if any, and copyrights (or
licenses such rights pursuant to valid and subsisting licenses) necessary for the conduct of their
business as described in the Time of Sale Prospectus, except where the failure to own or license
the same would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect and there is no infringement by any other person of any such patents,
trademarks, trade names, if any, or copyrights owned or licensed by the Company or a Significant
Subsidiary the result of which infringement could result in a Material Adverse Effect.
(g) To the best of our knowledge after making due inquiry with the Company and
conducting follow up inquiries as we have determined necessary or appropriate, each of the Company
and its Significant Subsidiaries has good and marketable title to all real property and good and
marketable title to all personal property owned by it free and clear of all liens, encumbrances and
defects except such as are described in each of the Time of Sale Prospectus and the Prospectus or
would not have a Material Adverse Effect; and any real property and buildings held under lease by
each of the Company and its Significant Subsidiaries are held by it under valid, subsisting and
enforceable leases in each case with such exceptions as are not material and do not materially
interfere with the use made of such property and buildings by the Company and its Significant
Subsidiaries, except as described in each of the Time of Sale Prospectus and the Prospectus.
(h) To the best of our knowledge after making due inquiry with the Company and
conducting follow up inquiries as we have determined necessary or appropriate, there are no legal
or governmental proceedings pending or threatened, to which the Company or any of its Significant
Subsidiaries is a party or to which any of the properties of the Company or any of its Significant
Subsidiaries is subject that are required to be described in each of the Time of Sale Prospectus
and the Prospectus and are not so described.
(i) Neither the execution and delivery of the Underwriting Agreement or the Deposit
Agreement, the deposit of the Shares with the Indian Domestic Custodian by the Company as
contemplated therein, the issue and sale of the ADSs being delivered at such Time of Delivery, nor
the compliance by the Company with or the consummation of any other transaction contemplated by the
Underwriting Agreement or the Deposit Agreement will:
(a) result in any violation of the Charter Documents; or
(b) contravene or result in a default under (1) any provision of applicable law or
regulation (including, without limitation, any applicable Indian law limiting foreign
ownership of the Company), (2) any agreement binding upon the Company or any Significant
Subsidiary or (3) any judgment, order or decree of any local or other court or public,
governmental or regulatory agency or body or stock exchange authority having jurisdiction
over the Company, or any of its Significant Subsidiaries, or any of their assets except for
such violations or defaults under clause (b)(2) that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
Annex II - 3
(j) No consent, approval, authorization, order, filing, registration or qualification of or
with any Indian court or Indian Governmental Agency is required for the consummation of the
transactions contemplated by the Deposit Agreement or the Underwriting Agreement for the deposit of
the Shares with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered at
such Time of Delivery, for the sale and delivery of ADSs to be sold by the Company and for the
execution, delivery and performance by the Company of the Underwriting Agreement and the Deposit
Agreement to be duly and validly authorized, except such as have been obtained and are in full
force and effect.
(k) The statements contained or incorporated by reference in each of the Time of Sale
Prospectus and the Prospectus under “Summary”, “Risk Factors”, “Dividend Policy”, “Capitalization”,
“Description of the American Depositary Shares”, “Description of Equity Shares”, “Regulations and
Restrictions on Foreign Ownership of Indian Securities”, “Government of India Approvals”, “Taxation
— Indian Taxation” and “Enforcement of Civil Liabilities” and Item 8 of the Registration Statement,
to the extent such statements constitute summaries of Indian law and/or relate to matters of law or
regulations of India or to the provisions of documents therein described, are true and accurate in
all material respects, and nothing has been omitted from such statements which would make the same
misleading in any material respect.
(l) Other than as set forth in each of the Time of Sale Prospectus and the Prospectus, no
stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments
made to the Underwriters, to the Government of India or any political subdivision or taxing
authority thereof or therein in connection with (i) the deposit with the Indian Domestic Custodian
on behalf of the Depositary of Shares by the Company against the issuance of ADRs evidencing ADSs,
(ii) the sale and delivery of the ADSs to or for the respective accounts of the Underwriters as set
forth in the Time of Sale Prospectus and pursuant to the terms of the Underwriting Agreement, (iii)
the sale and delivery outside of India by the Underwriters of the ADSs to the purchasers thereof in
the manner contemplated pursuant to the terms of the Underwriting Agreement or (iv) any other
transaction or payment contemplated by the Underwriting Agreement or the Deposit Agreement.
(n) Insofar as matters of Indian law are concerned, the forms of the Registration Statement,
the ADS Registration Statement, the Time of Sale Prospectus and the Prospectus and the filing of
the Registration Statement with the Commission have been duly authorized by and on behalf of the
Company; and the Registration Statement has been duly executed pursuant to such authorization in
accordance with Indian Laws, by, and on behalf of the Company;
(o) The agreement of the Company to the choice of law provisions set forth in Section 19 of
the Underwriting Agreement will be recognized by the courts of India provided that the relevant
provisions of the laws of the State of New York will not be applied to the extent such courts hold
that such provisions of the laws of the State of New York are contrary to the public order or good
morals or laws of India; the Company can xxx and be sued in its own name under the laws of India;
the irrevocable submission by the Company to the jurisdiction of a New York Court as set forth in
Section 15 of the Underwriting Agreement and the irrevocable waiver by the Company of any objection
to the laying of venue of a proceeding in a New York Court are
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legal, valid and binding; and the irrevocable appointment of Xx. Xxxxx’x Laboratories, Inc.,
as its authorized agent for service of process for the purpose described in Section 15 of the
Underwriting Agreement are legal, valid and binding; and a judgment obtained in a New York Court
arising out of or in relation to the obligations of the Company under the Underwriting Agreement or
the Deposit Agreement would be enforceable in accordance with Indian Laws against the Company in
the courts of India by a by a suit upon the judgment in terms of Section 13 of the Code of Civil
Procedure, 1908 of India, and not by a proceeding in execution. Section 13 of the Code of Civil
Procedure, 1908 of India provides that a foreign judgment shall be conclusive as to any matter
thereby directly adjudicated upon, except (i) where the judgment has not been pronounced by a court
of competent jurisdiction, (ii) where the judgment has not been given on the merits of the case,
(iii) where the judgment on the face of it appears to be founded on an incorrect view of
international law or that there has been a refusal to recognize the laws of India where applicable,
(iv) where the proceedings in which the judgment was obtained are opposed to natural justice, (v)
where the judgment has been obtained by fraud, or (vi) where the judgment sustains a claim founded
on a breach of law in force in India. Section 44A of the Code of Civil Procedure, 1908 of India
provides that where a foreign judgment has been rendered by a superior court in a territory which
the Government of India has by notification recognized to be a “reciprocating territory”, it may be
enforced in India by proceedings in execution as if the judgment had been rendered by a relevant
court in India. The United States has not been declared by the Government of India to be a
reciprocating territory for the purposes of Section 44A and judgments of the Courts of the United
States may therefore not be enforced in India by proceedings in execution, but may only be enforced
by a suit upon the judgment in terms of the Section 13 of the Code of Civil Procedure, 1908 of
India. The suit must be brought in India within three years from the date of the judgment in the
same manner as any other suit filed to enforce a civil liability in India. It is unlikely that a
court in India would award damages on the same basis as a foreign court if an action is brought in
India. Furthermore, it is unlikely that an Indian court would enforce foreign judgments if it
viewed the amount of damages awarded as excessive or inconsistent with Indian practice. A party
seeking to enforce a foreign judgment in India is required to obtain approval from the Reserve Bank
of India under the Foreign Exchange Management Act, 1999 to execute such a judgment or to
repatriate any amount recovered. Subject to the above, we are not aware (A) of any Indian treaties,
statutes or regulations that would indicate that the recognition and enforcement in India of such a
judgment would be contrary to the public order or laws of India, (B) any interpretations of any
statutes in India that would indicate that the recognition and enforcement in India of such a
judgment would be contrary to the public order or the laws of India and (C) of any reason why any
of the aforementioned courts in the State of New York (assuming that such courts have jurisdiction
over the subject matter under New York law) would not have jurisdiction over the subject matter
according to the laws of India.
(p) All dividends and other distributions declared and payable on the shares of capital stock
of the Company, may under the current laws and regulations of India be paid in Indian Rupees
(including any such dividends or distributions to be paid to the Depositary and holders of ADSs)
and may be converted into foreign currency that may be freely transferred out of India, and except
as already disclosed in each of the Time of Sale Prospectus and the Prospectus all such dividends
and other distributions will not be subject to Indian income, withholding or other taxes, duties,
levies, charges or deductions under the laws and regulations of India and are
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otherwise free and clear of any other tax, duty, withholding or deduction in India and without
the necessity of obtaining any governmental authorization in India.
(q) To the best of our knowledge after making due inquiry with the Company and conducting
follow up inquiries as we have determined necessary or appropriate, neither the Company nor any
Significant Subsidiary is (i) in violation of its respective Charter Documents, (ii) in default
(or, with the giving of notice or lapse of time, would be in default) under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which
it is a party or by which it may be bound, or to which any of its property or assets is or may be
subject (collectively, “Agreements”) or (iii) in violation or default of any provision of
applicable law or regulation (including, without limitation, any applicable Indian law limiting
foreign ownership of the Company), or (iv) any judgment, order or decree of any local or other
court or public, governmental or regulatory agency or body or stock exchange authority having
jurisdiction over it or any of its assets, as applicable, except for, as to sub-paragraphs (ii) and
(iv) only, such violations or defaults that would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(r) To the best of our knowledge after making due inquiry with the Company and conducting
follow up inquiries as we have determined necessary or appropriate, no labor dispute with employees
of Company or any Significant Subsidiary exists or is imminent and the Company and its Significant
Subsidiary has filed all necessary and required Indian central and state tax returns or has
properly requested extensions thereof.
(s) Except as required under the Indian Stamp Act, 1899 and the Indian Evidence Act, 1872 to
ensure the legality, validity, enforceability and admissibility into evidence in a legal or
administrative proceeding in India of each of the Underwriting Agreement, the Deposit Agreement or
any other document furnished pursuant to the Underwriting Agreement, it is not necessary that such
agreement be filed or recorded with any court or other authority in India or that any registration
tax, stamp duty or similar tax be paid in India on or in respect thereof, other than court costs,
including (without limitation) filing fees and deposits to guarantee judgment required by a Indian
court of law; except that the Underwriting Agreement and the Deposit Agreement will only be
admissible in evidence in India for purposes of enforcement if they are duly stamped in accordance
with the Indian Stamp Act, 1899.
(t) The Company is subject to Indian civil and commercial laws with respect to its obligations
under the Underwriting Agreement, the Deposit Agreement, the ADSs and the ADRs. The execution and
delivery by the Company and the performance by the Company of its obligations under each such
document constitute private and commercial acts rather than governmental or public acts, and
neither the Company, nor any of its properties, assets or revenues enjoy any right of immunity in
India from any legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any Indian court, from service of process, attachment upon or prior to judgment, or attachment
in aid of execution of judgment or from execution of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of a judgment, in any such court,
with respect to such obligations.
(u) To the best of our knowledge after making due inquiry with the Company and conducting
follow up inquiries as we have determined necessary or appropriate, and except as set
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forth in each of the Time of Sale Prospectus and the Prospectus, each of the Company and its
Significant Subsidiaries has obtained all necessary certificates, authorizations, licenses,
concessions, approvals, orders or permits (collectively, “Governmental Licenses”) issued by, and
has made all declarations and filings with, all local and other governmental authorities, all
self-regulatory organizations, all courts and other tribunals and all appropriate regulatory
agencies or bodies, including, without limitation, the Governmental Agencies, necessary (i) to own,
lease or license, as the case may be, and to operate and use its properties and assets, (ii) to
conduct the businesses now conducted by the it in the manner described in the Time of Sale
Prospectus, and (iii) to own all of its equity interests in a person or entity, amounting to 5% or
more, except where the failure so to possess, declare or file would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and effect would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
and neither the Company nor any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
reasonably be expected to result in a Material Adverse Effect.
(v) Except as disclosed in each of the Time of Sale Prospectus and the Prospectus, there are
no outstanding securities convertible into or exchangeable for, or warrants, options or other
purchase rights or obligations of the Company to issue Shares and there are no persons with
registration or other similar rights to have any equity, debt, convertible, exchangeable or other
securities of any kind registered for sale under the Registration Statement or the ADS Registration
Statement or included in the Offering.
(w) The Company has full power, authority and legal right to enter into and perform its
obligations of indemnification and contribution set forth in Section 8 of the Underwriting
Agreement and neither the indemnification nor the contribution provisions hereof contravene any
Indian law, including without limitation, Section 77 of the Indian Companies Act, 1956 regarding
financial assistance. The indemnification and contribution provisions set forth in Section 8 of
the Underwriting Agreement do not contravene the public policy of India.
(x) The holders of Equity Shares of the Company, by way of a special resolution passed at the
Annual General Meeting held on July 28, 2006 have granted their approval to the transactions
contemplated by the Underwriting Agreement; and the notice and explanatory statement to be sent to
all holders of equity shares of the Company informing them of the transactions contemplated by the
Underwriting Agreement was sent to all holders of Equity Shares in compliance with the provisions
of the Indian Companies Act, 1956.
(y) The transactions contemplated by the Underwriting Agreement do not require the Company or
any other party to submit any filing or other document with any Governmental Authority in India,
except for the post-closing report to be filed with the Reserve Bank of India within 30 days of
closing of the Offering.
(z) Neither any Indian law nor any rule or regulation of any Governmental Authority requires
that the Company’s shareholders approve the filing of the Registration Statement or the
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ADS Registration Statement in a shareholders meeting or otherwise prior to the filing of the
Registration Statement or the ADS Registration Statement, as applicable, with the Commission.
(aa) To the best of our knowledge after making due inquiry with the Company and conducting
follow up inquiries as we have determined necessary or appropriate and upon a review of (i) the
internal code of conduct of the Company in relation to xxxxxxx xxxxxxx and (ii) the notification
dated [ ] addressed to all employees informing them of the closure of the trading window for
the Equity Shares, the Company is in compliance with the SEBI rules and regulations on xxxxxxx
xxxxxxx;
(bb) No approval of either the Time of Sale Prospectus or the Prospectus by the Department of
Company Affairs is required in connection with the Offering, or the transactions contemplated by
the Underwriting Agreement or the Deposit Agreement.
(cc) It is not necessary (i) in order to enable any Underwriter to exercise or enforce its
rights under the Underwriting Agreement, (ii) to enable the Depositary or the holders or owners of
ADSs to enforce any of its rights under the Deposit Agreement; (iii) in order to enable any holder
of Shares or ADSs to enforce any of its rights as a Shareholder, or (iv) by reason of the entry
into and/or performance of the Underwriting Agreement or the Deposit Agreement that any or all of
the Underwriters or the Depositary or the holders or owners of Shares or ADSs should be licensed,
qualified or entitled to do business in India.
(dd) Neither the Depositary, any Underwriter nor any holder of Equity Shares will be deemed
resident, domiciled, carrying on business or subject to taxation in India solely by reason of
execution of the Underwriting Agreement, Deposit Agreement, or any other document or instrument to
be furnished in connection with the Offering, or by issuance or sale of the Shares or the ADSs, nor
shall any Underwriter be deemed resident, domiciled, carrying on business or subject to taxation in
India solely by reason of execution of the Underwriting Agreement or by the issuance or sale of the
Shares or the ADSs.
(ee) The Underwriting Agreement has been duly authorized, executed and delivered by or on
behalf of the Company and constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles, except that the Underwriting Agreement will only be admissible in
evidence in India for purposes of enforcement if they are duly stamped in accordance with the
Indian Stamp Act, 1899.
(ff) Nothing has come to our attention that would lead us to believe that (i) the ADS
Registration Statement or the Registration Statement, at the time it became effective (other than
the financial statements and related schedules as to which we express no opinion) contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) the Time of Sale
Prospectus (other than the financial statements and related schedules, as to which we express no
opinion) as of the [time of first sale] or as amended or supplemented, if applicable, as of each
Time of Delivery contained or contains any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances
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under which they were made, not misleading; or (iii) the Prospectus (other than the financial
statements and related schedules, as to which we express no opinion), as of its date or as amended
or supplemented, if applicable, as of each Time of Delivery contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
Such counsel may also state customary qualifications in such opinion, including qualifications
to the effect that they express no opinion as to the laws of any jurisdiction outside India.
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ANNEX III-A
FORM OF OPINION OF IN-HOUSE U.S. AND INTERNATIONAL PATENT COUNSEL TO THE COMPANY
(Note that terms used, but not defined, in this Annex III-A shall have the meanings assigned
to them in the body of the Underwriting Agreement or otherwise assigned to them in the written
opinion of in-house U.S. and international patent counsel to the Company)
(i) The statements in the Time of Sale Prospectus and the Prospectus relating to U.S. and
non-U.S. patent matters, under the captions “Risk Factors”,
“The Pharmaceutical Industry” and “Business” insofar as such statements constitute
matters of law, legal conclusions, or summaries of legal matters or proceedings, are correct in all
material respects and present fairly the information purported to be shown.
(ii) With respect to the U.S. and non-U.S. patents and patent applications that are owned by
the Company, the information presented in the Time of Sale Prospectus and the Prospectus under the
captions “Risk Factors”, “The Pharmaceutical
Industry” and “Business” do not contain any untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading as of the date of the Prospectus, the date of the Time of Sale Prospectus
and the date of this letter.
(iii) To the best of my knowledge, and except as otherwise disclosed in Annex 1 attached
hereto and except for ordinary course patent applications by the Company, there are no pending, or threatened, legal or governmental proceedings in the United States
relating to any U.S. and non-U.S. patents or patent applications that are owned by the Company,
except as disclosed in each of the Time of Sale Prospectus and the Prospectus.
(iv) Except to the extent assigned to our affiliate, Perlecan Pharma Limited, as disclosed in
each of the Time of Sale Prospectus and the Prospectus, the Company owns each of the U.S. and
non-U.S. patents and patent applications that are referred to in the Time of Sale Prospectus and
the Prospectus under the caption “Business.”
(v) To the best of my knowledge and having conducted the searches and investigations described
above, no liens or other security interests have been recorded with respect to any non-Indian
patents or patent applications that are owned by the Company.
(vi) Except as described in each of the Time of Sale Prospectus and the Prospectus, no third
party has any rights to any patents or patent applications that are owned by the Company.
(vii) To the best of my knowledge and having conducted the searches and investigations
described above, and except as described in Annex 1 attached hereto, no interference, opposition or
cancellation has been declared or provoked with respect to any U.S. patents or patent applications
that are owned by the Company.
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(viii) For each U.S. patent application that is owned by or assigned to the Company, all
information known to me to date, to be “material to patentability”, as defined in 37 C.F.R.
1.56(b), has been disclosed, or will be disclosed pursuant to 37 C.F.R. 1.97, to the USPTO.
(ix) To the best of my knowledge, the Company has not received any notice challenging the
validity or enforceability of any of the U.S. and non-U.S. patents that are owned by or assigned to
it.
(x) To the best of my knowledge and having conducted the searches and investigations described
above, no claim, which is presently pending, other than those referred to in the Time of Sale
Prospectus and the Prospectus, has been asserted against the Company relating to the potential
infringement of, or conflict with, any patents, trademarks, copyrights, trade secrets, or
proprietary rights, of others.
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ANNEX III-B
FORM OF OPINION OF INDIAN PATENT COUNSEL TO THE COMPANY
(1) The statements in the Time of Sale Prospectus and the Prospectus relating to the Company’s
Indian patent matters under the captions “Risk Factors”, “The Pharmaceutical Industry” and
“Business” insofar as such statements constitute matters of law, legal conclusions, or summaries of
legal matters or proceedings, are correct in all material respects and present fairly the
information purported to be shown.
(ii) With respect to the Indian patents and patent applications that are owned by the Company,
the information presented in each of the Time of Sale Prospectus and the Prospectus under the
captions “Risk Factors”, “The Pharmaceutical Industry” and “Business”, do not contain any untrue
statement of material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading.
(iii) To the best of my knowledge, there are no pending, or threatened, legal or governmental
proceedings relating to any Indian patents or patent applications that are owned by or licensed to
the Company.
(iv) The Company owns each of the Indian patents and patent applications that are referred to
in the Time of Sale Prospectus and the Prospectus under the caption “Business.”
(v) To the best of our knowledge and having conducted the necessary searches and
investigations, no liens or other security interests have been recorded with respect to any Indian
patents or patent applications that are owned by or licensed to the Company.
(vi) Except as described in the Time of Sale Prospectus and the Prospectus, no third party has
any rights to any Indian patents or patent applications that are owned by or licensed to the
Company.
(vii) To the best of our knowledge and having conducted the necessary searches and
investigations, no interference, opposition or cancellation has been declared or provoked in with
respect to any Indian patents or patent applications that are owned by or licensed to the Company.
(viii) To the best of our knowledge, the Company has not received any notice challenging the
validity or enforceability of any of the Indian patents that are owned by or assigned or licensed
to it.
(ix) To the best of our knowledge and having conducted the necessary searches and
investigations, no claim, which is presently pending, other than those referred to in each of the
Time of Sale Prospectus or the Prospectus, has been asserted against the Company relating to the
potential infringement of, or conflict with, any patents, trademarks, copyrights, trade secrets, or
proprietary rights, of others.
Xxxxxxx, Xxxxxxx & Associates LLP may rely on this opinion.
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ANNEX III-C
FORM OF OPINION OF IN-HOUSE CORPORATE COUNSEL TO THE COMPANY
The Company is duly qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required in the United States, whether by
reason of the ownership or leasing of property or the conduct of business; except where the failure
to be so qualified or be in good standing would not, individually or in the aggregate, be
reasonably expected to have a material adverse effect on the condition, financial or otherwise, or
in the earnings, business, management, operations or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of business.
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Annex IV
FORM OF COMFORT LETTER FROM KPMG INDIA
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