Exhibit (b)
November 2, 2007
Sify Limited
0xx Xxxxx
XXXXX Xxxx
0 Xxxxx Xxxx Xxxx
Taramani
Chennai 600 113
India
Sify Limited - Direct Registration System for ADSs evidenced by Equity Shares
Ladies and Gentlemen:
Reference is made to the Deposit Agreement, dated as of October 18,
1999, as amended by Amendment No. 1 to Deposit Agreement, dated as of January 6,
2000, as further amended by Amendment No. 2 to Deposit Agreement, dated as of
September 24, 2002, by and among Sify Limited (the "Company"), Citibank, N.A.,
as Depositary (the "Depositary"), and all Holders and Beneficial Owners from
time to time of American Depositary Receipts ("ADRs") evidencing American
Depositary Shares ("ADSs") issued thereunder, each ADS representing one (1)
Equity Share (the "Shares") of the Company. Capitalized terms used herein
without definition shall have the meaning assigned thereto in the Deposit
Agreement.
The purpose of this letter agreement is to supplement the Deposit
Agreement to enable the establishment by the Depositary of a "direct
registration system" (the "DR System") for ADSs and the issuance by the
Depositary of "uncertificated ADSs" as part of the DR System. In order to enable
such issuance of "uncertificated ADSs", the Company and the Depositary agree as
follows:
1. Notwithstanding any provision of the Deposit Agreement, the
Depositary may at any time and from time to time, issue ADSs that are not
evidenced by ADRs (such ADSs, the "Uncertificated ADSs", and the ADSs evidenced
by ADRs, the "Certificated ADSs");
2. Uncertificated ADSs shall not be represented by any instrument(s)
but shall be evidenced only by the registration of "uncertificated securities"
on the books and records of the Depositary maintained for such purpose. Any
reference to Holders of ADR(s) or ADS(s) in the Deposit Agreement shall, in the
context of the Uncertificated ADSs, refer to the person(s) in whose name the
Uncertificated ADSs are registered on the books of the Depositary maintained for
such purpose:
3. Holders of Uncertificated ADSs that are not subject to any
registered pledges, liens, restrictions or adverse claims, of which the
Depositary has written notice at such time, shall at all times have the right to
exchange the Uncertificated ADSs (or any portion thereof) for Certificated ADSs
of the same type and class, subject in each case to applicable laws and any
rules the Depositary may establish in respect of the Uncertificated ADSs;
4. Holders of Certificated ADSs shall, so long as the Depositary
maintains the DR System for the ADSs, have the right to exchange the
Certificated ADSs (or any portion thereof) for Uncertificated ADSs upon (i) the
due surrender of the Certificated ADSs to the Depositary for such purpose, and
(ii) the presentation of a written request to such effect to the Depositary,
subject in each case to (a) all liens and restrictions noted on the ADR
evidencing the Certificated ADS(s) and all adverse claims of which the
Depositary then has written notice, (b) the terms of the Deposit Agreement (as
supplemented by this letter agreement) and the rules that the Depositary may
establish from time to time for such purposes thereunder; and (c) applicable
law.
5. Uncertificated ADSs shall in all material respects be identical
to Certificated ADSs of the same type and class, except that (i) no ADR(s) shall
be, nor shall need to be, issued to evidence Uncertificated ADSs, (ii)
Uncertificated ADSs shall, subject to the terms of the Deposit Agreement (as
supplemented by this letter agreement), be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) each Holder's
ownership of Uncertificated ADSs shall be recorded on the books and records of
the Depositary maintained for such purpose and evidence of such Holder's
ownership shall be reflected in periodic statements provided by the Depositary
to each such Holder in accordance with applicable law, (iv) the Depositary may
from time to time, upon notice to the Holders of Uncertificated ADSs affected
thereby, establish rules and amend or supplement existing rules, as may be
deemed reasonably necessary to maintain the DR System and for the issuance of
Uncertificated ADSs on behalf of Holders, provided that such rules do not
conflict with the terms of the Deposit Agreement (as supplemented by this letter
agreement) and applicable law, (v) the Holder of Uncertificated ADSs shall not
be entitled to any benefits under the Deposit Agreement (as supplemented by this
letter agreement) and such Holder's Uncertificated ADSs shall not be valid or
enforceable for any purpose against the Depositary or the Company unless such
Holder is registered on the books and records of the Depositary maintained for
such purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may reasonably request, and (vii) upon
termination of the Deposit Agreement (as supplemented by this letter agreement),
the Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.2 of the Deposit Agreement;
6. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to [Sections 4.3 and 4.4]
thereof, the Depositary may in its discretion determine to issue Uncertificated
ADSs rather than Certificated ADSs, unless otherwise specifically instructed in
writing by the applicable Holder to issue Certificated ADSs;
7. Holders of Uncertificated ADSs may request the sale of ADSs
through the Depositary, subject to the terms and conditions generally applicable
to the sale of ADSs through the Depositary (which may be changed by the
Depositary from time-to-time);
8. All provisions and conditions of the Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated herein. The Depositary is authorized and directed to take any
and all actions, and establish any and all procedures, deemed reasonably
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necessary to give effect to the terms hereof. Any references in the Deposit
Agreement or any ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)"
shall, unless the context otherwise requires, include Certificated ADS(s) and
Uncertificated ADS(s), individually or collectively, as the context may require;
9. Except as set forth herein and except as required by applicable
law, the Uncertificated ADSs shall be treated as ADSs issued and outstanding
under the terms of the Deposit Agreement (as supplemented by this letter
agreement). In the event that, in determining the rights and obligations of
parties to the Deposit Agreement (as supplemented by this letter agreement) with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of
the Deposit Agreement and (b) the terms hereof, the terms and conditions set
forth herein shall be controlling and shall govern the rights and obligations of
the parties to the Deposit Agreement pertaining to the Uncertificated ADSs; and
10. This letter agreement shall be interpreted under, and all the
rights and obligations hereunder shall be governed by, the laws of the State of
New York without regard to the principles of choice of law thereof.
In addition, the Company and the Depositary agree that (i) the terms
hereof supplement the Deposit Agreement, and do not prejudice any substantial
existing rights of Holders of ADSs and, as a result, notice may but does not
need to be given of the terms hereof to Holders of ADSs, and (ii) the Company
and the Depositary shall make reference to the terms hereof in, or attach an
executed copy hereof to, the next Registration Statement on Form F-6 filing made
with the Securities and Exchange Commission in respect of the ADSs.
CITIBANK, N.A.,
As Depositary
By: /s/ Xxx-Xxxxx Xxxxxxx
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Name: Xxx-Xxxxx Xxxxxxx
Title: Vice President
Date: November 2, 2007
Acknowledged and Agreed:
SIFY LIMITED
By: M P Xxxxx Xxxxx
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Name: M P Xxxxx Xxxxx
Title: Chief Financial Officer
Date: November 12, 2007
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SIFY LIMITED INCUMBENCY CERTIFICATE
The undersigned hereby certifies that (i) he is the Company
Secretary of Sify Limited (the "Company") and as such s/he is authorized to
execute this Incumbency Certificate, (ii) M P Xxxxx Xxxxx, Chief Financial
Officer ("Authorized Officer") has been elected or appointed. is qualified and
is now acting as an officer of the Company in the capacity indicated below, and
that the signature set forth opposite the Authorized Officer's name is the
Authorized Officer's true and genuine signature, and (iii) the Authorized
Officer has all requisite power and authority to execute and deliver the
Instruction Letter, dated as of November 2, 2007 (the "Letter"), between the
Company and Citibank, N.A., in the name and on behalf of the Company, that the
Authorized Officer has duly executed and delivered the Letter on behalf of the
Company, and that his or her signature on such Letter is genuine.
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Name Title Phone Signature
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M P Xxxxx Xxxxx Chief Financial Officer 91 44 2254 0770 /s/ M P Xxxxx Xxxxx
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of the Company this 12 day of November, 2007.
SIFY LIMITED
By: /s/ V Xxxxxxxxxxxxxxx
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Name: V Xxxxxxxxxxxxxxx
Title: Company Secretary
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