Exhibit 4.3
Execution Copy
_______________________________________________________________________________
DEPOSIT AGREEMENT
_______________________________________________________________________________
by and among
XXXXXX.XXX INDIA LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
_______________________________________________________________________________
Dated as of June 13, 2000
_______________________________________________________________________________
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of June 13, 2000, by and among (i)
XXXXXX.XXX INDIA LIMITED, a public company with limited liability organized
under the laws of the Republic of India, and its successors (the "Company"),
(ii) CITIBANK, N.A., a national banking association organized under the laws
of the United States of America acting in its capacity as depositary, and any
successor depositary hereunder (the "Depositary"), and (iii) all Holders and
Beneficial Owners of American Depositary Shares evidenced by American
Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding equity
shares, each with a par value of Rs.5 per share (the "Shares"); and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution
and delivery of American Depositary Receipts evidencing such American
Depositary Shares, in each case upon the terms and subject to the conditions
set forth in this Deposit Agreement; and
WHEREAS, the Depositary is willing to act as the Depositary for such
ADR facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are
to be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions as are contemplated in this Deposit
Agreement; and
WHEREAS, American Depositary Shares issuable under the terms of this
Deposit Agreement are to be listed for trading on the NASDAQ National Market;
and
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved the establishment of an ADR facility upon
the terms set forth in this Deposit Agreement, the execution and delivery of
this Deposit Agreement on behalf of the Company, and the actions of the
Company and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such
term in Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term
by the Commission (as hereinafter defined) under Regulation C promulgated
under the Securities Act (as hereinafter defined).
Section 1.3 "American Depositary Receipt(s)"; "Receipt(s)"; and
"ADR(s)" shall mean the certificate(s) issued by the Depositary in
substantially the form of Exhibit A hereto to evidence the American Depositary
Shares issued under the terms of this Deposit Agreement, as such Receipts may
be amended from time to time in accordance with the provisions of this Deposit
Agreement. A Receipt may evidence any number of American Depositary Shares and
may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate." Except as
specifically provided in this Deposit Agreement or the applicable American
Depositary Receipt(s), the terms Receipt(s), American Depositary Receipt(s)
and ADR(s) include Restricted ADR(s) issued under the terms of Section 2.12 of
this Deposit Agreement.
Section 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean
the rights and interests in the Deposited Securities granted to the Holders
and Beneficial Owners pursuant to the terms and conditions of this Deposit
Agreement and the American Depositary Receipts issued hereunder to evidence
such ADSs. As of the date hereof, each American Depositary Share represents
one-half (1/2) of one Share on deposit with the Custodian (except as
contemplated in Section 5.10 of the Deposit Agreement). In the event of a
distribution upon Deposited Securities referred to in Section 4.2 or a change
in Deposited Securities referred to in Section 4.11 with respect to which
additional American Depositary Shares are not issued, each American Depositary
Share shall represent the Deposited Securities specified in such Sections.
Except as specifically provided in this Deposit Agreement or the applicable
American Depositary Receipt(s), the term American Depositary Share(s) includes
Restricted ADS(s) issued under the terms of Section 2.12 of this Deposit
Agreement.
The Company and the Depositary may at any time hereafter, subject to
applicable law and the terms of the Deposit Agreement, amend the ADS to Share
ratio, without, however, adversely affecting the rights of Holders under this
Deposit Agreement to withdraw the Deposited Securities represented by the
Holders' ADSs before the effective date of the amendment of the ADS to Share
ratio.
Section 1.5 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6 "Beneficial Owners" shall mean, as to any ADS, any
person(s) having a beneficial interest deriving from the ownership of such
ADS. A Beneficial Owner of ADSs may or may not be the Holder of the ADR(s)
evidencing such ADSs. A Beneficial Owner shall be able to exercise any right
or receive any benefit hereunder solely through the person who is the Holder
of the ADR(s) evidencing the ADSs owned by such Beneficial Owner. Except as
specifically provided in this Deposit Agreement or the applicable American
Depositary Receipt(s), the term Beneficial Owner(s) shall include Beneficial
Owner(s) of Restricted ADSs.
Section 1.7 "Business Day" shall mean any day on which both the banks
in the Republic of India and the banks in New York are open for business.
Section 1.8 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
Section 1.9 "Company" shall mean Xxxxxx.xxx India Limited, a public
company with limited liability organized and existing under the laws of the
Republic of India, and its successors.
Section 1.10 "Custodian" shall mean, as of the date hereof, Citibank,
N.A. - Mumbai Branch, having its principal office at 81 Xx. Xxxxx Xxxxxx Xxxx,
Xxxxx, Xxxxxx 000000, Xxxxx, as the custodian for the purposes of this Deposit
Agreement, and any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.5 as successor, substitute or additional
custodian hereunder. The term "Custodian" shall mean any Custodian
individually or all Custodians collectively, as the context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in
respect of ADSs, Deposited Securities and Shares, either (i) the physical
delivery of the certificate(s) representing such securities, or (ii) the
electronic delivery of such securities by means of book-entry transfer, if
available.
Section 1.12 "Deposit Agreement" shall mean this Deposit Agreement
and all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national
banking association organized under the laws of the United States, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
Section 1.14 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section
5.10 hereof shall not constitute Deposited Securities. Except as specifically
provided in this Deposit Agreement or the applicable Receipt(s), the term
Deposited Securities includes Restricted Shares deposited under the terms of
Section 2.12 of this Deposit Agreement.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
Section 1.17 "DTC Participant" shall mean any financial institution
(or any nominee of such institution) having one or more participant accounts
with DTC for receiving, holding and delivering the securities, property and
cash held in DTC.
Section 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.19 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.20 "Full Entitlement ADR(s)," "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
Section 1.21 "Holder(s)" shall mean the person(s) in whose name(s) a
Receipt is registered on the books of the Depositary (or the Registrar, if
any) maintained for such purpose. A Holder may or may not be a Beneficial
Owner. If a Holder is not the Beneficial Owner of the ADSs evidenced by the
Receipt registered in its name, such person shall be deemed to have all
requisite authority to act on behalf of the Beneficial Owners of the ADSs
evidenced by such Receipt.
Section 1.22 "National Securities Depository Limited" and "NSDL"
shall mean the National Securities Depository Limited, which provides the
book-entry settlement system for equity securities in the Republic of India,
or any successor entity thereto.
Section 1.23 "Partial Entitlement ADR(s)," "Partial Entitlement
ADS(s)" and "Partial Entitlement Share(s)" shall have the respective meanings
set forth in Section 2.11.
Section 1.24 "Pre-Release Transaction" shall have the meaning set
forth in Section 5.10.
Section 1.25 "Principal Office", when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
Section 1.26 "Registrar" shall mean the Depositary or any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register issuances,
transfers and cancellations of Receipts as herein provided, and shall include
any co-registrar appointed by the Depositary for such purposes. Registrars
(other than the Depositary) may be removed and substitutes appointed by the
Depositary. Each Registrar (other than the Depositary) appointed pursuant to
this Deposit Agreement shall be required to give notice in writing to the
Depositary and to the Company accepting such appointment and agreeing to be
bound by the applicable terms of this Deposit Agreement.
Section 1.27 "Restricted ADR(s)" and "Restricted ADS(s)" shall have
the meaning set forth in Section 2.12.
Section 1.28 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from
the Company or any of its Affiliates in a transaction or chain of transactions
not involving any public offering and are subject to resale limitations under
the Securities Act or the rules issued thereunder, or (ii) are held by an
officer or director (or persons performing similar functions) or other
Affiliate of the Company and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (iii) are subject to other
restrictions on sale, deposit or transfer under the laws of the United States,
the Republic of India, or under a shareholder agreement or the Articles of
Association and Memorandum of Association of the Company or under the
regulations of any applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons
other than an Affiliate of the Company in a transaction (i) covered by an
effective resale registration statement, or (ii) exempt from the registration
requirements of the Securities Act (as hereinafter defined), and the Shares,
Deposited Securities or ADSs are not, when held by such person(s), Restricted
Securities.
Section 1.29 "Restricted Share(s)" shall have the meaning set forth
in Section 2.12.
Section 1.30 "Rupees" and "Rs." shall refer to the lawful currency of
the Republic of India.
Section 1.31 "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
Section 1.32 "Share Registrar" shall mean, as of the date hereof, the
Company and may after the date hereof be any depository institution organized
under the laws of the Republic of India appointed by the Company to carry out
the duties of registrar for the Shares or any successor as Share Registrar for
such Shares appointed by the Company.
Section 1.33 "Shares" shall mean the Company's equity shares, par
value Rs.5 per share, validly issued and outstanding and fully paid and may,
if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall
Shares include evidence of the right to receive Shares with respect to which
the full purchase price has not been paid or Shares as to which preemptive
rights have theretofore not been validly waived or exercised; provided
further, however, that, if there shall occur any change in par value,
split-up, consolidation, reclassification, conversion or any other event
described in Section 4.11 in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the maximum extent permitted by law, represent
the successor securities resulting from such change in par value, split-up,
consolidation, exchange, conversion, reclassification or event. Except as
specifically set forth in this Deposit Agreement or the applicable American
Depositary Receipt(s), the term Share(s) includes Restricted Shares.
Section 1.34 "United States" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints
the Depositary as depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms and
conditions set forth in this Deposit Agreement and the applicable ADRs. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms of this Deposit Agreement, shall
be deemed for all purposes to (a) be a party to and bound by the terms of this
Deposit Agreement and the applicable ADRs, and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in this Deposit Agreement and the
applicable ADRs, to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of this
Deposit Agreement (the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof).
Section 2.2 Form and Transferability of Receipts.
(a) Form. ADSs shall be evidenced by definitive Receipts which shall
be engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. Receipts may be issued under
the Deposit Agreement in denominations of any whole number of ADSs. The
Receipts shall be substantially in the form set forth in Exhibit A to the
Deposit Agreement, with any appropriate insertions, modifications and
omissions, in each case as otherwise contemplated in the Deposit Agreement or
required by law. Receipts shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. No
Receipt and no ADS evidenced thereby shall be entitled to any benefits under
the Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such Receipt shall have been so dated,
signed, countersigned and registered. Receipts bearing the facsimile signature
of a duly-authorized signatory of the Depositary or the Registrar, who at the
time of signature was a duly authorized signatory of the Depositary or the
Registrar, as the case may be, shall bind the Depositary, notwithstanding the
fact that such signatory has ceased to be so authorized prior to the delivery
of such Receipt by the Depositary. The Receipts shall bear a CUSIP number that
is different from any CUSIP number that was, is or may be assigned to any
depositary receipts previously or subsequently issued pursuant to any other
arrangement between the Depositary (or any other depositary) and the Company
and which are not Receipts issued hereunder.
(b) Legends. The Receipts may, with the consent of the Company (which
consent shall not be unreasonably withheld) or at the request of the Company
(which shall not be unreasonably made), be endorsed with or have incorporated
in the text thereof such legends or recitals not inconsistent with the
provisions of the Deposit Agreement (i) as may be necessary to enable the
Depositary or the Company to perform their respective obligations hereunder,
(ii) as may be required to comply with any applicable laws or regulations, or
with the rules and regulations of any securities exchange or market upon which
ADSs may be traded, listed or quoted, or to conform with any usage with
respect thereto, (iii) as may be necessary to indicate any special limitations
or restrictions to which any particular Receipts or ADSs are subject by reason
of the date or manner of issuance of the Deposited Securities or otherwise, or
(iv) as may be required by any book-entry system in which the ADSs are held.
Holders and Beneficial Owners shall be deemed, for all purposes, to have
notice of, and to be bound by, the terms and conditions of the legends set
forth, in the case of Holders, on the ADR registered in the name of the
applicable Holder or, in the case of Beneficial Owners, on the ADR
representing the ADSs owned by such Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the
Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed
or is accompanied by proper instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the
Holder of a Receipt (that is, the person in whose name a Receipt is registered
on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Company nor the Depositary shall have any obligation nor
be subject to any liability under this Deposit Agreement or any Receipt to any
holder of a Receipt or any beneficial owner unless such holder is the Holder
of such Receipt or, in the case of a beneficial owner, such beneficial owner
or the Beneficial Owner's representative is the Holder thereof.
(d) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the American Depositary Shares into DTC's book-entry
settlement system. A single ADR in the form of a "Balance Certificate" will
evidence all ADSs held through DTC and will be registered in the name of the
nominee for DTC (currently "Cede & Co.") and will provide that it represents
the aggregate amount of ADSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate amount of ADSs
represented thereby may from time to time be increased or decreased by making
adjustments on such records of the Depositary and of DTC or its nominee as
hereinafter provided. As such, the nominee for DTC will be the only "Holder"
of the ADR evidencing all ADSs held through DTC. Citibank, N.A. (or such other
entity as is appointed by DTC or its nominee) may hold the "Balance
Certificate" as custodian for DTC or its nominee. Each Beneficial Owner of
ADSs held through DTC must rely upon the procedures of DTC and the DTC
Participants to exercise or be entitled to any rights attributable to such
ADSs. The DTC Participants shall for all purposes be deemed to have all
requisite power and authority to act on behalf of the Beneficial Owners of the
ADSs held in the DTC Participants' respective accounts in DTC and the
Depositary shall for all purposes be authorized to rely upon any instructions
and information given to it by DTC Participants on behalf of Beneficial Owners
of ADSs. So long as ADSs are held through DTC or unless otherwise required by
law, ownership of beneficial interests in the ADR registered in the name of
the nominee for DTC will be shown on, and transfers of such ownership will be
effected only through, records maintained by (i) DTC or its nominee (with
respect to the interests of DTC Participants), or (ii) DTC Participants or
their nominees (with respect to the interests of clients of DTC Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and
conditions of this Deposit Agreement and applicable law, Shares or evidence of
rights to receive Shares may be deposited by any person (including the
Depositary in its individual capacity but subject, however, in the case of the
Company or any Affiliate of the Company, to Section 5.7 hereof) at any time,
whether or not the transfer books of the Company or the Share Registrar, if
any, are closed, by Delivery of the Shares to the Custodian, provided that
Restricted Shares may be deposited only upon the terms expressly permitted by
Section 2.12 of the Deposit Agreement. Every deposit of Shares shall be
accompanied by the following: (A) (i) in the case of Shares represented by
certificates issued in registered form, appropriate instruments of transfer or
endorsement (including, if necessary, fully executed and stamped instruments
of transfer as required under the laws of the Republic of India), in a form
satisfactory to the Custodian, (ii) in the case of Shares represented by
certificates in bearer form, of the requisite coupons and talons pertaining
thereto, and (iii) in the case of Shares delivered by book-entry transfer,
confirmation of such book-entry transfer to the Custodian or that irrevocable
instructions have been given to cause such Shares to be so transferred, (B)
such certifications and payments (including, without limitation, the
Depositary's fees and related charges) and evidence of such payments
(including, without limitation, stamping or otherwise marking such Shares by
way of receipt) as may be reasonably required by the Depositary or the
Custodian in accordance with the provisions of this Deposit Agreement and
applicable law, (C) if the Depositary so reasonably requires, a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person(s) stated in such order a Receipt or Receipts for the number of
American Depositary Shares representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with
the rules and regulations of, any applicable governmental agency in the
Republic of India, and (E) if the Depositary so requires, (i) an agreement,
assignment or instrument satisfactory to the Depositary or the Custodian which
provides for the prompt transfer by any person in whose name the Shares are or
have been recorded to the Custodian of any distribution, or right to subscribe
for additional Shares or to receive other property in respect of any such
deposited Shares or, in lieu thereof, such indemnity or other agreement as
shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares for any and all purposes until the
Shares so deposited are registered in the name of the Depositary, the
Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities, except as
contemplated by Section 2.12, provided that the Company has restricted
transfer of such Shares to comply with any ownership restrictions referred to
in Section 3.5 nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No
Shares shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by
the person depositing such Shares under the laws and regulations of the
Republic of India and any necessary approval has been granted by any
governmental body in the Republic of India, if any, which is then performing
the function of the regulator of currency exchange. Unless current applicable
law changes, once withdrawn from the depositary facility, the Deposited
Securities may not be redeposited with the Depositary under this Deposit
Agreement. The Depositary may issue ADSs against evidence of rights to receive
Shares from the Company, any agent of the Company or any custodian, registrar,
transfer agent, clearing agency or other entity authorized by the Company to
maintain ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished by the Company or any such custodian, registrar,
transfer agent, clearing agency or other entity authorized by the Company to
maintain ownership or transaction records in respect of the Shares.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian
(or other Deposited Securities pursuant to Article IV hereof), together with
the other documents above specified, to present such certificate(s), together
with the appropriate instrument(s) of transfer or endorsement, duly stamped,
to the Share Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
for whom the deposit is made) in the name of the Depositary, the Custodian or
a nominee of either. Deposited Securities shall be held by the Depositary or
by a Custodian for the account and to the order of the Depositary or a nominee
in each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act, unless a registration statement is in effect as to such Shares
or other Deposited Securities, or any Shares or other Deposited Securities the
deposit of which would violate any provisions of the Articles of Association,
Memorandum of Association, or any shareholders' agreement of, the Company or
applicable law.
Shares may not be deposited by persons located in India or residents
of India or by persons acting on behalf of such persons located in India or
residents of India, except for deposits of Shares by the Company on behalf of
persons located and residing outside India.
Section 2.5 Execution and Delivery of Receipts. The Depositary has
made arrangements with the Custodian to confirm to the Depositary (i) that a
deposit of Shares has been made pursuant to Section 2.3 hereof, (ii) that such
Deposited Securities have been recorded in the name of the Depositary, the
Custodian or a nominee of either on the shareholders' register maintained by
or on behalf of the Company or by the Share Registrar, if any, if registered
Shares have been deposited, or, if deposit is made by book-entry transfer,
confirmation of such transfer in the books of the NSDL, (iii) that all
required documents and approvals have been received, and (iv) the person(s) to
whom or upon whose order American Depositary Shares are deliverable in respect
thereof and the number of American Depositary Shares to be so delivered
thereby. Such notification may be made by letter, cable, telex, SWIFT message
or, at the risk and expense of the person making the deposit, by facsimile or
other means of electronic transmission. Upon receiving such notice from the
Custodian, the Depositary, subject to the terms and conditions of this Deposit
Agreement and applicable law, shall issue the American Depositary Shares
representing the Shares so deposited to or upon the order of the person(s)
named in the notice delivered to the Depositary and shall execute and deliver
at its Principal Office Receipt(s) registered in the name(s) requested by such
person(s) and evidencing the aggregate number of American Depositary Shares to
which such person(s) are entitled, but only upon payment to the Depositary of
the charges of the Depositary for accepting a deposit, issuing American
Depositary Shares and executing and delivering such Receipt(s) (as set forth
in Section 5.9 and Exhibit B hereto) and all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the Receipt(s). The Depositary shall only issue
American Depositary Shares in whole numbers and deliver American Depositary
Receipts evidencing whole numbers of American Depositary Shares. Nothing
herein shall prohibit any Pre-Release Transaction upon the terms set forth in
this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of Receipts.
(a) Transfer. The Registrar shall register the transfer of Receipts
(and of the ADSs represented thereby) on the books maintained for such purpose
and the Depositary shall cancel such Receipts and execute new Receipts
evidencing the same aggregate number of ADSs as those evidenced by the
Receipts canceled by the Depositary, shall cause the Registrar to countersign
such new Receipts and shall Deliver such new Receipts to or upon the order of
the person entitled thereto, if each of the following conditions has been
satisfied: (i) the Receipts have been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) the surrendered
Receipts have been properly endorsed or are accompanied by proper instruments
of transfer (including signature guarantees in accordance with standard
securities industry practice), (iii) the surrendered Receipts have been duly
stamped (if required by the laws of the State of New York or of the United
States, or any other applicable law), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B hereto)
have been paid, subject, however, in each case, to the terms and conditions of
the applicable Receipts, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
(b) Combination & Split Up. The Registrar shall register the split-up
or combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall cancel such Receipts and
execute new Receipts for the number of ADSs requested, but in the aggregate
not exceeding the number of ADSs evidenced by the Receipts canceled by the
Depositary, shall cause the Registrar to countersign such new Receipts and
shall Deliver such new Receipts to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) the Receipts have
been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting
a split-up or combination thereof, and (ii) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B hereto)
have been paid, subject, however, in each case, to the terms and conditions of
the applicable Receipts, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary.
Such co-transfer agents may be removed and substitutes may be appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.6 (other
than the Depositary) shall give notice in writing to the Depositary accepting
such appointment and agreeing to be bound by the applicable terms of the
Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.
Subject to applicable law, the Holder of ADSs shall be entitled to Delivery
(at the Custodian's designated office) to him or upon his order of the
Deposited Securities at the time represented by the ADS(s) upon satisfaction
of each of the following conditions: (i) the Holder (or a duly authorized
attorney of the Holder) has duly Delivered ADSs to the Depositary at its
Principal Office (and if applicable, the Receipts evidencing such ADSs) for
the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, the Receipts Delivered to the
Depositary for such purpose have been properly endorsed in blank or are
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the
written order of the person(s) designated in such order, and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
and Exhibit B hereof) have been paid, subject, however, in each case, to the
terms and conditions of the Receipts evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association and Memorandum of
Association, of any applicable laws (including the rules of the Reserve Bank
of India), and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) cancel the ADSs Delivered to it (and, if applicable, the
Receipts evidencing the ADSs so Delivered), (ii) direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) direct the Custodian to Deliver (without unreasonable
delay) at the Custodian's designated office the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities (including, without limitation,
stamped instruments of transfer), or evidence of the electronic transfer
thereof (if available), as the case may be, to or upon the written order of
the person(s) designated in the order delivered to the Depositary for such
purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, the Receipts evidencing the ADSs so canceled, the Articles
of Association and Memorandum of Association of the Company, applicable laws,
the rules of the Reserve Bank of India, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery to it of ADSs representing a
number other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) return to the person surrendering such ADSs the number
of ADSs representing any remaining fractional Share, or (ii) sell or cause to
be sold the fractional Share represented by the ADS(s) so surrendered and
remit the proceeds of such sale (net of (a) applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of shares or rights, which are at
the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward
(to the extent permitted by law) any cash or other property (other than
securities) held by the Custodian in respect of the Deposited Securities
represented by such ADSs to the Depositary for delivery at the Principal
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
The Company and the Depositary have been advised that, as of the date
hereof, a stamp duty of 0.5 percent of the market value of the Shares will be
charged in respect of any withdrawal of Shares and such stamp duty will be
payable by the relevant Holder requesting the withdrawal of the Deposited
Securities. In addition, it will be necessary to obtain the approval of the
Reserve Bank of India for withdrawal of Deposited Securities or for the
Company to register Shares in the name of a person who is not a resident of
the Republic of India upon such withdrawal. Any subsequent transfer of the
Deposited Securities by the holder after withdrawal will require the approval
of the Reserve Bank of India, which approval must be obtained by the
transferee and the Company under Section 29(1)(b) and 19(4), respectively, of
the Foreign Exchange Regulation Act, 1973.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
execution and delivery, registration, registration of issuance, transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of
Shares or presenter of ADSs or of a Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Section 5.9 and
Exhibit B hereof, (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature or any other matter contemplated by
Section 3.1 hereof, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of Receipts or American
Depositary Shares or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of the applicable Receipt, this Deposit
Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of
transfer of Receipts in particular instances may be refused, or the
registration of transfers of Receipts generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar, if any, are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which the ADSs
or Shares are listed, or under any provision of this Deposit Agreement or the
applicable Receipt(s) or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this
Deposit Agreement or any Receipt(s) to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of
the Depositary or the Company or the deposit of Shares in connection with
voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Section I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
Section 2.9 Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost, or stolen, the Depositary shall execute and
deliver a new Receipt of like tenor at the expense of the Holder (a) in the
case of a mutilated Receipt, in exchange of and substitution for such
mutilated Receipt upon cancellation thereof, or (b) in the case of a
destroyed, lost or stolen Receipt, in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an
indemnity bond) as may be required by the Depositary to save it and any of its
agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction, loss or theft of such
Receipt, the authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts
so canceled, provided the Depositary maintains a record of all destroyed
Receipts. Any ADSs held in book-entry form (i.e., through accounts at DTC)
shall be deemed canceled when the Depositary causes the number of ADSs
evidenced by the Balance Certificate to be reduced by the number of ADSs
surrendered (without the need to physically destroy the Balance Certificate).
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then
on deposit (the Shares then on deposit collectively, "Full Entitlement Shares"
and the Shares with different entitlement, "Partial Entitlement Shares"), the
Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares
separate and distinct from Full Entitlement Shares, and (ii) subject to the
terms of this Deposit Agreement, issue ADSs and deliver ADRs representing
Partial Entitlement Shares which are separate and distinct from the ADSs and
ADRs representing Full Entitlement Shares, by means of separate CUSIP
numbering and legending (if necessary) ("Partial Entitlement ADSs/ADRs" and
"Full Entitlement ADSs/ADRs", respectively). If and when Partial Entitlement
Shares become Full Entitlement Shares, the Depositary shall (a) give notice
thereof to Holders of Partial Entitlement ADSs and give Holders of Partial
Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for
Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c)
take such actions as are necessary to remove the distinctions between (i) the
Partial Entitlement ADRs/ADSs, on the one hand, and (ii) the Full Entitlement
ADRs/ADSs on the other. Holders and Beneficial Owners of Partial Entitlement
ADSs shall only be entitled to the entitlements of Partial Entitlement Shares.
Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled only
to the entitlements of Full Entitlement Shares. All provisions and conditions
of this Deposit Agreement shall apply to Partial Entitlement ADRs/ADSs to the
same extent as Full Entitlement ADRs/ADSs, except as contemplated by this
Section 2.11. The Depositary is authorized to take any and all other actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the terms of this Section 2.11. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.12 Restricted ADSs. The Depositary shall, at the request
and expense of the Company, establish procedures enabling the deposit
hereunder of Shares that are Restricted Securities in order to enable the
holder of such Shares to hold its ownership interests in such Restricted
Shares in the form of ADSs issued under the terms hereof (such Shares,
"Restricted Shares"). Upon receipt of a written request from the Company to
accept Restricted Shares for deposit hereunder, the Depositary agrees to
establish procedures permitting the deposit of such Restricted Shares and the
issuance of one or more series of ADSs representing such deposited Restricted
Shares (such ADSs, the "Restricted ADSs," and the ADRs evidencing such
Restricted ADSs, the "Restricted ADRs"). The Company shall assist the
Depositary in the establishment of such procedures and agrees that it shall
take all steps necessary and satisfactory to the Depositary to ensure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the Holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory
to the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the
deposit of Restricted Shares shall be separately identified on the books of
the Depositary and the Restricted Shares so deposited shall be held separate
and distinct from the other Deposited Securities held hereunder. The
Restricted Shares and the Restricted ADSs shall not be eligible for
Pre-Release Transactions described in Section 5.10. The Restricted ADSs shall
not be eligible for inclusion in any book-entry settlement system, including,
without limitation, DTC and shall not in any way be fungible with the ADSs
issued under the terms hereof that are not Restricted ADSs. The Restricted
ADRs and the Restricted ADSs evidenced thereby shall be transferable only by
the Holder thereof upon delivery to the Depositary of (i) all documentation
otherwise contemplated by this Deposit Agreement and (ii) an opinion of
counsel reasonably satisfactory to the Depositary setting forth, inter alia,
the conditions upon which the Restricted ADR presented is, and the Restricted
ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the
legend set forth on the Restricted ADR presented for transfer. Except as (i)
set forth in this Section 2.12 and the applicable ADR and (ii) required by
applicable law, the Restricted ADRs and the Restricted ADSs evidenced thereby
shall be treated as ADRs and ADSs issued and outstanding under the terms of
the Deposit Agreement. In the event that the Company makes any distributions
upon Deposited Securities described in Article IV of this Deposit Agreement,
the Depositary shall (i) make the determinations contemplated in Article IV
with respect to the Restricted ADSs independently from the determination for
ADSs that are not Restricted ADSs and (ii) shall make distributions under
Article IV to Holders of Restricted ADSs only on the basis of the
distributions received from the Company in respect of the Restricted Shares
corresponding to the Restricted ADSs held by such Holders. In the event that,
in determining the rights and obligations of parties hereto with respect to
any Restricted ADSs, any conflict arises between (a) the terms of this Deposit
Agreement (other than this Section 2.12) and (b) the terms of (i) this Section
2.12 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.12 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to this Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depositary, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary, the Company and
the Custodian such proof of citizenship or residence, taxpayer status, payment
of all applicable taxes or other governmental charges, exchange control
approval and approval for deposit, legal or beneficial ownership of ADSs and
Deposited Securities, compliance with applicable laws and regulations and the
terms of this Deposit Agreement, Receipt(s) and the provisions of, or
governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other
information and documentation (or, in the case of Shares in registered form
presented for deposit, such information relating to the registration on the
books of the Company or of the Share Registrar as the Depositary or the
Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under this Deposit Agreement and the applicable Receipt(s). The Depositary and
the Registrar, as applicable, may withhold the execution or Delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or distribution of rights or of the proceeds thereof or, to the
extent not limited by the terms of Section 7.8 hereof, the Delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's reasonable satisfaction. The Depositary shall
provide the Company, in a timely manner, with copies or originals (if
necessary and appropriate) of (i) any such proofs of citizenship or residence,
taxpayer status, or exchange control approval or approval for deposit which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation and withdrawal. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners, or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited
Securities or American Depositary Shares shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 7.8) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless
from, any claims with respect to taxes (including applicable interest and
penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to represent and warrant that (i) such Shares and the certificates therefor
are duly authorized, validly issued, fully paid, non-assessable and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any,
with respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, and (v) the Shares presented for
deposit have not been stripped of any rights or entitlements. Except as
contemplated by Section 2.12 of this Deposit Agreement, each such person shall
also be deemed to represent that Shares deposited by that person are not
Restricted Securities, and that the deposit of Shares or sale of ADSs by that
person is not restricted, under the Securities Act. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance
and cancellation of American Depositary Shares in respect thereof and the
transfer of such American Depositary Shares. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take
any and all actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement or any Receipt(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
the rules and requirements of the Commission, the Securities and Exchange
Board of India, the Reserve Bank of India, and any stock exchange on which the
Shares are, or will be, registered, traded or listed, the Articles of
Association and Memorandum of Association of the Company, and any other laws,
rules and regulations which require notification to the Company of interests
in Deposited Securities, inter alia, as to certain acquisitions or depositions
of Shares (or Share equivalents), the capacity in which such Holder or
Beneficial Owner owns American Depositary Shares (and Shares as the case may
be) and regarding the identity of any other person(s) interested in such
American Depositary Shares and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time
of such request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any
such request from the Company to the Holders and to forward to the Company any
such responses to such requests received by the Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other
provision in this Deposit Agreement or any Receipt, the Company may restrict
transfers of the Shares where the proposed transfer is in violation of
applicable laws, rules and regulations (including where such transfer might
result in ownership of Shares exceeding limits imposed by applicable law and
regulations), or the Articles of Association and Memorandum of Association of
the Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where the proposed
transfer is in violation of applicable laws, rules and regulations (including
where such transfer may result in the total number of Shares represented by
the American Depositary Shares beneficially owned by a single Holder or
Beneficial Owner to exceed any such limits). The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial
Owner in excess of the limits set forth in the preceding sentence, including,
but not limited to, the imposition of restrictions on the transfer of American
Depositary Shares, the removal or limitation of voting rights or mandatory
sale or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the American Depositary Shares held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association and
Memorandum of Association of the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars on the terms described in Section 4.8, (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and
(iii) distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS
Record Date. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent, and
any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any
cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon
request.
Section 4.2 Distribution in Shares. If any distribution upon any
Deposited Securities consists of a free distribution of Shares, the Company
shall cause such Shares to be deposited with the Custodian and registered, as
the case may be, in the name of the Depositary, the Custodian or their
respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to
Section 5.9 hereof, distribute to the Holders as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS
Record Date, additional American Depositary Shares, which represent in the
aggregate the number of Shares received as such free distribution, subject to
the other terms of this Deposit Agreement (including, without limitation,
payment of (a) the applicable fees and charges of, and expenses incurred by,
the Depositary as set forth in Exhibit B hereto and (b) taxes), or (ii) if
additional American Depositary Shares are not so distributed, each American
Depositary Share issued and outstanding after the ADS Record Date shall, to
the extent permissible by law, thenceforth also represent rights and interests
in the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number of
Shares or American Depositary Shares, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms
described in Section 4.1. In the event that the Depositary determines that any
distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the
Company in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Shares must be
registered under the Securities Act or other laws in order to be distributed
to Holders (and no such registration statement has been declared effective),
the Depositary may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any such
sale (after deduction of such (a) taxes and (b) fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms described in Section 4.1. The Depositary shall hold and/or distribute
any unsold balance of such property in accordance with the provisions of this
Deposit Agreement.
Section 4.3 [Intentionally omitted].
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 60 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon timely
receipt of a notice indicating that the Company wishes such rights to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such rights available
to the Holders. The Depositary shall make such rights available to Holders
only if (i) the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution of rights is reasonably practicable. In
the event any of the conditions set forth above are not satisfied or if the
Company requests that the rights not be made available to Holders of ADSs, the
Depositary shall proceed with the sale of the rights as contemplated in
Section 4.4(b) below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.9) and establish procedures to (x) distribute rights to
purchase additional ADSs (by means of warrants or otherwise), (y) to enable
the Holders to exercise such rights (upon payment of the subscription price
and of the applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of
such rights. The Company shall assist the Depositary to the extent necessary
in establishing such procedures. Nothing herein shall obligate the Depositary
to make available to the Holders a method to exercise rights to subscribe for
Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines that
it is not reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall, upon consultation with the Company, determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including
public or private sale) as it may deem practical. The Company shall assist the
Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available
to Holders in general or any Holders in particular, or (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or exercise,
or (iii) the content of any materials forwarded to the Holders by the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order
for the Company to offer such rights or such securities to Holders and to sell
the securities represented by such rights, the Depositary will not distribute
such rights to the Holders (i) unless and until a registration statement under
the Securities Act (and other applicable law) covering such offering is in
effect or (ii) unless the Company furnishes the Depositary opinion(s) of
counsel for the Company in the United States and counsel to the Company in any
other applicable country in which rights would be distributed, in each case
reasonably satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or
do not require registration under, the provisions of the Securities Act or any
other applicable laws. The rights issued by the Company may not be negotiable
and, if negotiable, a liquid market for rights may not exist. This may
adversely affect (1) the ability of the Depositary to dispose of such rights
or (2) the amount the Depositary would realize upon disposal of rights.
In the event that the Company, the Depositary or the Custodian shall
be required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental
charges, the amount distributed to the Holders of American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares.
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have
determined that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall
distribute the property so received to the Holders of record, as of the ADS
Record Date, in proportion to the number of ADSs held by them respectively and
in such manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary and (ii) net of any taxes
withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the
terms of Section 5.7, or (iii) the Depositary determines that all or a portion
of such distribution is not reasonably practicable, the Depositary shall sell
or cause such property to be sold in a public or private sale, at such place
or places and upon such terms as it may deem practicable and shall (i) cause
the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes) to the Holders as of the ADS Record Date upon the terms of
Section 4.1. If the Depositary is unable to sell such property, the Depositary
may dispose of such property for the account of Holders of ADSs in any way it
deems reasonably practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form. Subject to the terms of this Article IV, distributions in respect
of Deposited Securities that are held by the Depositary in bearer form shall
be made to the Depositary for the account of the respective Holders of
Receipts with respect to which any such distribution is made upon due
presentation by the Depositary or the Custodian to the Company of any relevant
coupons, talons, or certificates. The Company shall promptly notify the
Depositary of such distributions. The Depositary or the Custodian shall
promptly present such coupons, talons or certificates, as the case may be, in
connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right
of redemption in respect of any of the Deposited Securities, the Company shall
give notice thereof to the Depositary at least 60 days prior to the intended
date of redemption which notice shall set forth the particulars of the
proposed redemption. Upon receipt of (i) such notice and (ii) satisfactory
documentation given by the Company to the Depositary within the terms of
Section 5.7, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall provide to each
Holder a notice setting forth the intended exercise by the Company of the
redemption rights and any other particulars set forth in the Company's notice
to the Depositary. The Depositary shall instruct the Custodian to present to
the Company the Deposited Securities in respect of which redemption rights are
being exercised against payment of the applicable redemption price. Upon
receipt of confirmation from the Custodian that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, and distribute the proceeds (net of
applicable (a) fees and charges of, and the expenses incurred by, the
Depositary and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof and the terms set forth in Section 4.1 hereof. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired
will be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of Section 4.8
hereof and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary
or the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted
on a practicable basis, by sale or in any other manner that it may determine
in accordance with applicable law, into Dollars transferable to the United
States and distributable to the Holders entitled thereto, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such Foreign Currency into Dollars, and shall distribute such
Dollars (net of any applicable fees, any reasonable and customary expenses
incurred in such conversion and any expenses incurred on behalf of the Holders
in complying with currency exchange control or other governmental
requirements) in accordance with the terms of the applicable sections of this
Deposit Agreement. If the Depositary shall have distributed warrants or other
instruments that entitle the holders thereof to such Dollars, the Depositary
shall distribute such Dollars to the holders of such warrants and/or
instruments upon surrender thereof for cancellation, in either case without
liability for interest thereon. Such distribution may be made upon an averaged
or other practicable basis without regard to any distinctions among Holders on
account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment
the conversion of any Foreign Currency and the transfer and distribution of
proceeds of such conversion received by the Depositary is not practical or
lawful, or if any approval or license of any governmental authority or agency
thereof that is required for such conversion, transfer and distribution is
denied or, in the opinion of the Depositary, not obtainable at a reasonable
cost or within a reasonable period, the Depositary may, in its discretion, (i)
make such conversion and distribution in Dollars to the Holders for whom such
conversion, transfer and distribution is lawful and practicable, (ii)
distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign
Currency (without liability for interest thereon) for the respective accounts
of the Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date (the "ADS Record Date") for the
determination of the Holders of Receipts who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any
such meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each American
Depositary Share. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as possible to the applicable record date for
the Deposited Securities (if any) set by the Company in the Republic of India.
Subject to applicable law and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities.
(a) ADS Voting Instructions. As soon as practicable after receipt of
notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect
of such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having
no obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy, (b) a statement that the Holders
at the close of business on the ADS Record Date will be entitled, subject to
any applicable law, the provisions of this Deposit Agreement, the Articles of
Association and Memorandum of Association of the Company and the provisions of
or governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs, (c) a brief statement as to the
manner in which such voting instructions may be given, and (d) summaries of
any materials and other documents provided by the Company for the purpose of
enabling such Holders to exercise such voting rights. Voting instructions may
be given only in respect of a number of ADSs representing an integral number
of Deposited Securities.
Upon the timely receipt from a Holder of ADSs as of the ADS Record
Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under
applicable law, the provisions of this Deposit Agreement, the Articles of
Association and Memorandum of Association of the Company and the provisions of
the Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities (in person or by proxy) represented by such
Holder's American Depositary Shares, either (x) in the event of voting on a
show of hands, in which case the Depositary shall vote, or shall instruct the
Custodian to vote, all Shares and/or other Deposited Securities held under the
terms hereof in accordance with instructions received from Holders of a
majority of the American Depositary Shares for which voting instructions have
been timely given to the Depositary, or (y) in the event of voting on a poll,
in which case the Depositary shall vote, or shall instruct the Custodian to
vote, the Shares and/or other Deposited Securities in accordance with the
voting instructions timely received from the Holders giving instructions.
For the purpose of this Section 4.10, in the event that the
Depositary receives an express instruction from a Holder as of the ADS Record
Date to demand a poll with respect to any matter to be voted on by Holders of
the American Depositary Shares, the Depositary shall notify the Chairman of
the Company or a person designated by the Chairman of such instruction and
request the Chairman or such designee to demand a poll with respect to such
matters. The Company agrees that the Chairman or such designee will use their
reasonable best efforts to demand a poll at the meeting at which such matters
are to be voted on and to vote such Shares in accordance with the instructions
of the Holders of the American Depositary Shares.
The Depositary has been advised that under Indian law, as in effect
as of the date hereof, voting of Shares is by show of hands (in which case
each shareholder has one (1) vote regardless of the number of Shares owned)
unless a poll is validly demanded, and that a proxy holder may not vote except
in a poll vote. In addition, the Company's Articles of Association and
Memorandum of Association, as in effect as of the date hereof, provide that a
poll may be demanded at any general meeting by a holder or holders holding (a)
at least 10% of the total Shares entitled to vote on a resolution or (b)
Shares with an aggregate paid up capital of at least Rs.50,000. As a result,
unless specifically instructed by a Holder or Holders holding (a) at least 10%
of the total Shares (represented by such Holder(s)' American Depositary
Shares) entitled vote on a resolution or (b) Shares (represented by such
Holder(s)' American Depositary Shares) with an aggregate paid-up capital of at
least Rs.50,000, the Chairman of the Company or his designee may not be able
to demand a poll at the instruction of Holders. The Company's Articles of
Association and Memorandum of Association (as in effect on the date hereof)
further provide that the Chairman of the Company shall cast the deciding vote,
in the event of a tie.
(b) Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of for purposes of establishing a quorum or otherwise, Deposited
Securities represented by ADSs except (a) pursuant to and in accordance with
the voting instructions timely received from Holders or (b) as otherwise
contemplated herein in the event of voting by show of hands. If the Depositary
timely receives from a Holder voting instructions which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting
instructions. Deposited Securities represented by ADSs for which no specific
voting instructions are received by the Depositary from the Holder shall not
be voted.
Notwithstanding anything else contained in this Deposit Agreement,
the Depositary shall not have any obligation to take any action with respect
to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S.
counsel addressing any actions requested to be taken if so requested by the
Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by
the Depositary or the Custodian in exchange for, or in conversion of or
replacement of or otherwise in respect of, such Deposited Securities shall, to
the extent permitted by law, be treated as new Deposited Securities under this
Deposit Agreement, and the Receipts shall, subject to the provisions of this
Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. The Depositary
may, with the Company's approval, and shall, if the Company shall so request,
subject to the terms of the Deposit Agreement and receipt of an opinion of
counsel to the Company reasonably satisfactory to the Depositary that such
distributions are not in violation of any applicable laws or regulations,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in
Exhibit A hereto, specifically describing such new Deposited Securities or
corporate change. The Company agrees to, jointly with the Depositary, amend
the Registration Statement on Form F-6 as filed with the Commission to permit
the issuance of such new form of Receipts. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to
some or all Holders, the Depositary may, with the Company's approval, and
shall, if the Company requests, subject to receipt of an opinion of Company's
counsel reasonably satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) for
the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available
to Holders in general or to any Holder in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
Section 4.12 Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X.
00000.
Section 4.13 Reports. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either
of them as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also provide to Holders copies of such reports when furnished
by the Company pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of
the names, addresses and holdings of American Depositary Shares of all
Holders.
Section 4.15 List of Restricted Securities Owners. Upon each issuance
by the Company of any securities that are Restricted Securities, the Company
shall (1) advise in writing each person to whom Restricted Securities are
issued that such Restricted Securities are not eligible for deposit hereunder
(except, to the extent applicable, as contemplated by Section 2.12 hereof) and
(ii) obtain from each such person, to the extent possible, a written
undertaking that such person will not deposit such Restricted Securities (or
any securities obtained upon conversion of such Restricted Securities)
hereunder so long as such securities constitute "Restricted Securities" and
will use reasonable endeavors to obtain from their respective transferees a
similar undertaking.
Section 4.16 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable,
the Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and
other benefits under applicable tax treaties or laws with respect to dividends
and other distributions on the Deposited Securities. As a condition to
receiving such benefits, Holders and Beneficial Owners of American Depositary
Shares may be required from time to time, and in a timely manner, to file such
proof of taxpayer status, residence and beneficial ownership (as applicable),
to execute such certificates and to make such representations and warranties,
or to provide any other information or documents, as the Depositary or the
Custodian may deem necessary or proper to fulfill the Depositary's or the
Custodian's obligations under applicable law. The Holders and Beneficial
Owners shall indemnify the Depositary, the Company, the Custodian and any of
their respective directors, employees, agents and Affiliates against, and hold
each of them harmless from, any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of any
refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax
in respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (or shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form reasonably satisfactory to the Depositary. The Depositary shall, to the
extent required by U.S. law, report to Holders any taxes withheld by it or the
Custodian, and, if such information is provided to it by the Company, any
taxes withheld by the Company. The Depositary and the Custodian shall not be
required to provide the Holders with any evidence of the remittance by the
Company (or its agents) of any taxes withheld, or of the payment of taxes by
the Company, except to the extent the evidence is provided by the Company to
the Depositary or the Custodian, as applicable. Neither the Depositary nor the
Custodian shall be liable for the failure by any Holder or Beneficial Owner to
obtain the benefits of credits on the basis non-U.S. tax paid against such
Holder's or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company.
The Depositary shall not incur any liability for any tax consequences that may
be incurred by Holders and Beneficial Owners on account of their ownership of
the American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment
Company" (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the
Registrar. Until termination of this Deposit Agreement in accordance with its
terms, the Registrar shall maintain in the Borough of Manhattan, the City of
New York, an office and facilities for the execution and delivery,
registration of issuances, registration of transfers, combination and split-up
of Receipts, and the surrender of Receipts for the purpose of withdrawal of
Deposited Securities in accordance with the provisions of this Deposit
Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for
inspection by the Company and by the Holders of such Receipts, provided that
such inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related
to this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties
hereunder, or at the reasonable written request of the Company subject, in all
cases, to Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or appoint a
Registrar or one or more co-registrars for registration of Receipts and
transfers, combinations and split-ups, and to countersign such Receipts in
accordance with any requirements of such exchanges or systems. Such Registrar
or co-registrars may be removed and a substitute or substitutes appointed by
the Depositary which shall notify the Company of such removal or appointment
of a Registrar or co-registrar.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall
be obligated to do or perform any act which is inconsistent with the
provisions of this Deposit Agreement or incur any liability (i) if the
Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of this Deposit
Agreement, by reason of any provision of any present or future law or
regulation of the United States, the Republic of India or any other country,
or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future of the Articles of
Association and Memorandum of Association of the Company or any provision of
or governing any Deposited Securities, or by reason of any act of God or war
or other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii)
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement or in the Articles of Association and Memorandum
of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative
thereof, or any other person believed by it in good faith to be competent to
give such advice or information, (iv) for the inability by a Holder or
Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of
American Depositary Shares or (v) for any consequential or punitive damages
for any breach of the terms of this Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to
Holders or Beneficial Owners or other persons, except that the Depositary and
its agents agree to perform their obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be
required (and no Custodian shall be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely
to the Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or
reasonably practicable, for the content of any information submitted to it by
the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the
Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness
of any third party, for allowing any rights to lapse upon the terms of this
Deposit Agreement or for the failure or timeliness of any notice from the
Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
be required by the Company to execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except
as required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated
in Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums
due it and on the written request of the Company shall, (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in Sections 5.08 and
5.09), (ii) duly assign, transfer and deliver all right, title and interest to
the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly provide
notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank, N.A. - Mumbai Branch as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary
for the Shares for which the Custodian acts as custodian and shall be
responsible solely to it. If any Custodian resigns or is discharged from its
duties hereunder with respect to any Deposited Securities and no other
Custodian has previously been appointed hereunder, the Depositary shall
promptly appoint a substitute custodian that is organized under the laws of
the Republic of India. The Depositary shall require such resigning or
discharged Custodian to deliver the Deposited Securities held by it, together
with all such records maintained by it as Custodian with respect to such
Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional
custodian with respect to any Deposited Securities, or discharge the Custodian
with respect to any Deposited Securities and appoint, upon notice to the
Company, a substitute custodian, which shall thereafter be Custodian hereunder
with respect to the Deposited Securities. Immediately upon any such change,
the Depositary shall give notice thereof in writing to all Holders of
Receipts, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary,
continue to be the Custodian of the Deposited Securities without any further
act or writing, and shall be subject to the direction of the successor
depositary. The successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all
such instruments as may be proper to give to such Custodian full and complete
power and authority to act on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting
of such holders, or of the taking of any action by such holders other than at
a meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited
Securities, the Company shall transmit to the Depositary and the Custodian a
copy of the notice thereof in the English language but otherwise in the form
given or to be given to holders of Shares or other Deposited Securities. The
Company shall also furnish to the Custodian and the Depositary a summary, in
English, of any applicable provisions or proposed provisions of the Articles
of Association and Memorandum of Association of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) an English
language version of the other notices, reports and communications which are
made generally available by the Company to holders of its Shares or other
Deposited Securities and (b) the English-language versions of the Company's
annual and semi-annual reports prepared in accordance with the applicable
requirements of the Commission. The Depositary shall arrange, at the request
of the Company and at the Company's expense, to provide copies thereof to all
Holders or make such notices, reports and other communications available to
all Holders on a basis similar to that for holders of Shares or other
Deposited Securities or on such other basis as the Company may advise the
Depositary or as may be required by any applicable law, regulation or stock
exchange requirement. The Company has delivered to the Depositary and the
Custodian a copy of the Company's Articles of Association and Memorandum of
Association along with the provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any Affiliate of the Company in
connection with such Shares, and promptly upon any amendment thereto or change
therein, the Company shall deliver to the Depositary and the Custodian a copy
of such amendment thereto or change therein. The Depositary may rely upon such
copy for all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company
agrees that in the event it or any of its Affiliates proposes (i) an issuance,
sale or distribution of additional Shares, (ii) an offering of rights to
subscribe for Shares or other Deposited Securities, (iii) an issuance of
securities convertible into or exchangeable for Shares, (iv) an issuance of
rights to subscribe for securities convertible into or exchangeable for
Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of, or
self-tender for, or repurchase of, Deposited Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets, or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without
limitation, the Investment Company Act of 1940, as amended, the Exchange Act
or the securities laws of the states of the United States). In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or
not application of such transaction to Holders and Beneficial Owners (1)
requires a registration statement under the Securities Act to be in effect or
(2) is exempt from the registration requirements of the Securities Act and (b)
an opinion of the Republic of India counsel stating that (1) making the
transaction available to Holders and Beneficial Owners does not violate the
laws or regulations of the Republic of India and (2) all requisite regulatory
consents and approvals have been obtained in the Republic of India. If the
filing of a registration statement is required, the Depositary shall not have
any obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has
been declared effective. If, being advised by counsel, the Company determines
that a transaction is required to be registered under the Securities Act, the
Company will either (i) register such transaction to the extent necessary,
(ii) alter the terms of the transaction to avoid the registration requirements
of the Securities Act or (iii) direct the Depositary to take specific
measures, in each case as contemplated in this Deposit Agreement, to prevent
such transaction from violating the registration requirements of the
Securities Act. The Company agrees with the Depositary that neither the
Company nor any of its Affiliates will at any time (i) deposit any Shares or
other Deposited Securities, either upon original issuance or upon a sale of
Shares or other Deposited Securities previously issued and reacquired by the
Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been
registered under the Securities Act and, if applicable, the Exchange Act (and
such registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge
or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed
or omitted by the Depositary under the terms hereof due to the negligence or
bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any
of their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability, tax,
charge or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or as a result of any
offering documents in respect thereof issued by, or with the approval of, the
Company, or (c) out of acts performed or omitted, including, but not limited
to, any delivery by the Depositary on behalf of the Company of information
regarding the Company in connection with this Deposit Agreement, the Receipts,
the ADSs, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates under the terms of this Deposit Agreement,
except to the extent such loss, liability, tax, charge or expense is due to
the negligence or bad faith of any of them, or (ii) by the Company or any of
its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the
termination of this Deposit Agreement and the succession or substitution of
any party hereto.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or
claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such indemnified person's rights to seek indemnification except to the
extent the indemnifying person is materially prejudiced by such failure) and
shall consult in good faith with the indemnifying person as to the conduct of
the defense of such action or claim that may give rise to an indemnity
hereunder, which defense shall be reasonable in the circumstances. No
indemnified person shall compromise or settle any action or claim that may
give rise to an indemnity hereunder without the consent of the indemnifying
person, which consent shall not be unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities, as the case may be, shall
be required to pay to the Depositary the Depositary's fees and related charges
identified as payable by them respectively in the Fee Schedule attached hereto
as Exhibit B. All fees and charges so payable may, at any time and from time
to time, be changed by agreement between the Depositary and the Company, but,
in the case of fees and charges payable by Holders and Beneficial Owners, only
in the manner contemplated in Section 6.1. The Depositary shall provide,
without charge, a copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees
and charges and to reimburse the Depositary for such out-of-pocket expenses as
the Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to
time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for
those fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms
and provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf and on behalf of their clients, may own and deal
in any class of securities of the Company and its Affiliates and in ADSs. In
its capacity as Depositary, the Depositary shall not lend Shares or ADSs;
provided, however, that the Depositary may, except in the case of Restricted
ADSs, (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities pursuant to Section 2.7, including ADSs which were issued
under (i) above but for which Shares may not have been received (each such
transaction a "Pre-Release Transaction"). The Depositary may receive ADSs in
lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or
Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to
be delivered by the Applicant under such Pre-Release Transaction, (x) agrees
to indicate the Depositary as owner of such Shares or ADSs in its records and
to hold such Shares or ADSs in trust for the Depositary until such Shares or
ADSs are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or ADSs, and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized
with cash, United States government securities or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or
disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case
by case basis as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit such
Restricted Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions
of this Section 6.1 and applicable law, the Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached
hereto and to be issued under the terms hereof may at any time and from time
to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the prior written consent of the Holders or Beneficial Owners. Any
amendment or supplement which shall impose or increase any fees or charges
(other than charges in connection with foreign exchange control regulations,
and taxes and other governmental charges, delivery and other such expenses),
or which shall otherwise materially prejudice any substantial existing right
of Holders or Beneficial Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements which
(i) are reasonably necessary (as agreed by the Company and the Depositary) in
order for (a) the American Depositary Shares to be registered on Form F-6
under the Securities Act or (b) the American Depositary Share(s) to be traded
solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
American Depositary Share(s), to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement and the Receipt as amended
and supplemented thereby. In no event shall any amendment or supplement impair
the right of the Holder to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require an amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement
the Deposit Agreement and the Receipts at any time in accordance with such
changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement and the Receipts in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by
providing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. If 60 days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii)
the Company shall have delivered to the Depositary a written notice of the
removal of the Depositary, and in either case a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.4,
the Depositary may terminate this Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of a Receipt will, upon
surrender of such Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of Receipts
referred to in Section 2.7 and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes or governmental
charges, be entitled to Delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to
the Holders thereof, and shall not give any further notices or perform any
further acts under this Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, subject to the conditions and
restrictions set forth in Section 2.7, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale
of any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case,
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination of this Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement with respect to the Receipts, the
Deposited Securities and the American Depositary Shares, except to account for
such net proceeds and other cash (after deducting, or charging, as the case
may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all
of such counterparts together shall constitute one and the same agreement.
Copies of this Deposit Agreement shall be maintained with the Depositary and
shall be open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is
for the exclusive benefit of the parties hereto (and their successors) and
shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person, except to the extent specifically set forth in
this Deposit Agreement. Nothing in this Deposit Agreement shall be deemed to
give rise to a partnership or joint venture among the parties nor establish a
fiduciary or similar relationship among the parties. The parties hereto
acknowledge and agree that (i) the Depositary and its Affiliates may at any
time have multiple banking relationships with the Company and its Affiliates,
(ii) the Depositary and its Affiliates may be engaged at any time in
transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (iii) nothing contained in this
Agreement shall (a) preclude the Depositary or any of its Affiliates from
engaging in such transactions or establishing or maintaining such
relationships, or (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made
or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of
any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by
mail, air courier or cable, telex or facsimile transmission, confirmed by
letter personally delivered or sent by mail or air courier, addressed to
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx, X.X. First Cross Road, Mahim (West),
Mumbai 400 016, India, Attention: Mr. Xxxx Xxxxxxxxxxxx, or to any other
address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter personally
delivered or sent by mail or air courier, addressed to Citibank, N.A., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts
Department, or to any other address which the Depositary may specify in
writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if
such Holder shall have filed with the Depositary a request that notices
intended for such Holder be mailed to some other address, at the address
specified in such request, or (b) if a Holder shall have designated such means
of notification as an acceptable means of notification under the terms of this
Deposit Agreement, by means of electronic messaging addressed for delivery to
the e-mail address designated by the Holder for such purpose. Notice to
Holders shall be deemed to be notice to Beneficial Owners for all purposes of
this Deposit Agreement. Failure to notify a Holder or any defect in the
notification to a Holder shall not affect the sufficiency of notification to
other Holders or to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of
a cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed
to be effective at the time of the initiation of the transmission by the
sender (as shown on the sender's records), notwithstanding that the intended
recipient retrieves the message at a later date, fails to retrieve such
message, or fails to receive such notice on account of its failure to maintain
the designated e-mail address, its failure to designate a substitute e-mail
address or for any other reason.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement
and the Receipts shall be interpreted in accordance with, and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed
by, the laws of the State of New York without reference to the principles of
choice of law thereof. Notwithstanding anything contained in this Deposit
Agreement, any Receipt or any present or future provisions of the laws of the
State of New York, the rights of holders of Shares and of any other Deposited
Securities and the obligations and duties of the Company in respect of the
holders of Shares and other Deposited Securities, as such, shall be governed
by the laws of the Republic of India (or, if applicable, such other laws as
may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6,
the Company and the Depositary agree that the federal or state courts in the
City of New York shall have jurisdiction to hear and determine any suit,
action or proceeding and to settle any dispute between them that may arise out
of or in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers CT Corporation
System (the "Agent") now at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telephone number (000) 000-0000 as its authorized agent to receive and accept
for and on its behalf, and on behalf of its properties, assets and revenues,
service by mail of any and all legal process, summons, notices and documents
that may be served in any suit, action or proceeding brought against the
Company in any federal or state court as described in the preceding sentence
or in the next paragraph of this Section 7.6. If for any reason the Agent
shall cease to be available to act as such, the Company agrees to designate a
new agent in New York on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not
the appointment of such Agent shall for any reason prove to be ineffective or
such Agent shall fail to accept or acknowledge such service), with a copy
mailed to the Company by registered or certified air mail, postage prepaid, to
its address provided in Section 7.5 hereof. The Company agrees that the
failure of the Agent to give any notice of such service to it shall not impair
or affect in any way the validity of such service or any judgment rendered in
any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner
brings a suit, action or proceeding against (a) the Company, (b) the
Depositary in its capacity as Depositary under this Deposit Agreement or (c)
against both the Company and the Depositary, in any such case, in any state or
federal court of the United States, and the Depositary or the Company have any
claim, for indemnification or otherwise, against each other arising out of the
subject matter of such suit, action or proceeding, then the Company and the
Depositary may pursue such claim against each other in the state or federal
court in the United States in which such suit, action, or proceeding is
pending and, for such purposes, the Company and the Depositary irrevocably
submit to the non-exclusive jurisdiction of such courts. The Company agrees
that service of process upon the Agent in the manner set forth in the
preceding paragraph shall be effective service upon it for any suit, action or
proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to
the laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of
immunity from legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, from attachment
upon or prior to judgment, from attachment in aid of execution or judgment,
from execution of judgment, or from any other legal process or proceeding for
the giving of any relief or for the enforcement of any judgment, and consents
to such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited
Securities.
No disclaimer of liability under the Securities Act is intended by
any provision of the Deposit Agreement. The provisions of this Section 7.6
shall survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4
hereof, this Deposit Agreement may not be assigned by either the Company or
the Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General
Instructions to Form F-6 Registration Statement, as amended from time to time,
under the Securities Act.
Section 7.9 Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions
of this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the
plural and vice versa unless the context otherwise requires. Titles to
sections of this Deposit Agreement are included for convenience only and shall
be disregarded in construing the language contained in this Deposit Agreement.
References to "applicable laws and regulations" shall refer to laws and
regulations applicable to ADRs, ADSs or Deposited Securities as in effect at
the relevant time of determination, unless otherwise required by law or
regulation.
IN WITNESS WHEREOF, XXXXXX.XXX INDIA LIMITED and CITIBANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth
and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued
in accordance with the terms hereof, or upon acquisition of any beneficial
interest therein.
XXXXXX.XXX INDIA LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER: ________
_______
American Depositary Shares
(each American Depositary
Share representing one-half
(1/2) of one equity share,
par value Rs.5 per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED EQUITY SHARES
of
XXXXXX.XXX INDIA LIMITED
(a public company with limited liability organized under the laws of the
Republic of India)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of
______________ American Depositary Shares (hereinafter "ADS"), representing
deposited equity shares, each of par value of Rs.5 per share, including
evidence of rights to receive such equity shares (the "Shares"), of XXXXXX.XXX
INDIA LIMITED, a public company with limited liability organized under the
laws of the Republic of India (the "Company"). As of the date of the Deposit
Agreement (as hereinafter defined), each ADS represents one-half (1/2)of one
Share deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the Deposit Agreement is Citibank, N.A. - Mumbai Branch
(the "Custodian"). The ratio of American Depositary Shares to Shares is
subject to amendment as provided in the Deposit Agreement. The Depositary's
Principal Office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of __________, 2000 (as amended from time to time, the "Deposit
Agreement"), by and among the Company, the Depositary, and all Holders and
Beneficial Owners from time to time of American Depositary Shares ("ADSs")
evidenced by Receipts issued thereunder, each of whom by accepting an ADS (or
an interest therein) agrees to become a party thereto and becomes bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of Receipts and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and with the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association and Memorandum of Association of the Company (as in effect on the
date of the signing of the Deposit Agreement) and are qualified by and subject
to the detailed provisions of the Deposit Agreement and the Articles of
Association and Memorandum of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the
Deposited Securities. The Depositary has made arrangements for the acceptance
of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC must rely
on the procedures of DTC and the DTC Participants to exercise and be entitled
to any rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
Subject to applicable law, the Holder of this Receipt (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) to him or upon his order of the Deposited Securities at the
time represented by the ADS(s) evidenced hereby upon satisfaction of each of
the following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this Receipt) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so
required by the Depositary, this Receipt has been properly endorsed in blank
or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry
practice), (iii) if so required by the Depositary, the Holder of the ADSs has
executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered
to or upon the written order of the person(s) designated in such order, and
(iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B to the Deposit Agreement) have been paid,
subject, however, in each case, to the terms and conditions of this Receipt,
of the Deposit Agreement, of the Company's Articles of Association and
Memorandum of Association, of any applicable laws (including the rules of the
Reserve Bank of India), and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof. Unless Indian law,
as in effect as of the date of the Deposit Agreement, changes, once withdrawn
from the depositary facility, Shares may not be redeposited with the
Depositary under the Deposit Agreement.
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) direct the Custodian to Deliver (without unreasonable
delay) at the Custodian's designated office the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities (including, without limitation,
stamped instruments of transfer), or evidence of the electronic transfer
thereof (if available), as the case may be, to or upon the written order of
the person(s) designated in the order delivered to the Depositary for such
purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of this Receipt, of the Articles of Association and
Memorandum of Association of the Company, applicable laws, the rules of the
Reserve Bank of India, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of Delivery of ADSs representing other than a
whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the
terms hereof, and shall, at the discretion of the Depositary, either (i)
return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the
fractional Share represented by the ADS(s) so surrendered and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. Notwithstanding anything else contained in this Receipt or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of shares or rights, which are at
the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs evidenced by this Receipt. At the request, risk and
expense of any Holder so surrendering ADSs, represented by this Receipt, and
for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other
than securities) held by the Custodian in respect of the Deposited Securities
represented by such ADSs to the Depositary for delivery at the Principal
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
The Company and the Depositary have been advised that, as of the date
of the Deposit Agreement, a stamp duty of 0.5 percent of the market value of
the Shares will be charged in respect of any withdrawal of Shares and such
stamp duty will be payable by the relevant Holder requesting the withdrawal of
the Deposited Securities. In addition, it will be necessary to obtain the
approval of the Reserve Bank of India for withdrawal of Deposited Securities
or for the Company to register Shares in the name of a person who is not a
resident of the Republic of India upon such withdrawal. Any subsequent
transfer of the Deposited Securities by the holder after withdrawal will
require the approval of the Reserve Bank of India, which approval must be
obtained by the transferee and the Company under Section 29(1)(b) and 19(4),
respectively, of the Foreign Exchange Regulation Act, 1973.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar
shall register the transfer of this Receipt (and of the ADSs represented
hereby) on the books maintained for such purpose and the Depositary shall
cancel this Receipt and execute new Receipts evidencing the same aggregate
number of ADSs as those evidenced by this Receipt when canceled, shall cause
the Registrar to countersign such new Receipts and shall Deliver such new
Receipts to or upon the order of the person entitled thereto, if each of the
following conditions has been satisfied: (i) this Receipt has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to
the Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) this Receipt has been properly endorsed or is accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard securities industry practice), (iii) this Receipt has been duly
stamped (if required by the laws of the State of New York or of the United
States, or any other applicable law), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this Receipt, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the
number of ADSs evidenced by this Receipt when canceled by the Depositary,
shall cause the Registrar to countersign such new Receipts and shall Deliver
such new Receipts to or upon the order of the Holder thereof, if each of the
following conditions has been satisfied: (i) this Receipt has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to
the Depositary at its Principal Office for the purpose of effecting a split-up
or combination hereof, and (ii) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and government
charges (as are set forth in Section 5.9 and Exhibit B to the Deposit
Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this Receipt, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of
Shares or presenter of ADSs or of a Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters
contemplated in the Deposit Agreement, and (iii) compliance with (A) any laws
or governmental regulations relating to the execution and delivery of Receipts
or ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations as the Depositary or the Company may establish consistent with the
provisions of this Receipt, the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the Share
Registrar, are closed or if any such action is deemed necessary or advisable
by the Depositary or the Company, in good faith, at any time or from time to
time because of any requirement of law, any government or governmental body or
commission or any securities exchange upon which the Shares or ADSs are
listed, or under any provision of the Deposit Agreement or this Receipt, or
under any provision of, or governing, the Deposited Securities, or because of
a meeting of shareholders of the Company or for any other reason, subject in
all cases to Article (24) hereof. Notwithstanding any provision of the Deposit
Agreement or this Receipt to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated
by Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the rules and requirements of the Commission, the
Securities and Exchange Board of India, Reserve Bank of India, and of any
stock exchange on which Shares are, or will be registered, traded or listed,
the Articles of Association and Memorandum of Association of the Company and
any other laws, rules and regulations, which require notification to the
Company of interest in Deposited Securities, inter alia, as to certain
acquisitions or dispositions of shares (or share equivalents), the capacity in
which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares where the proposed transfer is in violation of applicable laws, rules
and regulations (including where such transfer might result in ownership of
Shares exceeding limits imposed under applicable laws and regulations), or the
Articles of Association and Memorandum of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers
of ADSs where the proposed transfer is in violation of applicable laws, rules
and regulations (including where such transfer may result in the total number
of Shares represented by the ADSs owned by a single Holder or Beneficial Owner
to exceed any such limits). The Company may, in its sole discretion but
subject to applicable law, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of the
limits set forth in the preceding sentence, including but not limited to, the
imposition of restrictions on the transfer of ADSs, the removal or limitation
of voting rights or a mandatory sale or disposition on behalf of a Holder or
Beneficial Owner of the Shares represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association and
Memorandum of Association of the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to this ADR or any Deposited
Securities or ADSs evidenced hereby shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner hereof remaining
liable for any deficiency. The Custodian may refuse the deposit of Shares and
the Depositary may refuse to issue ADSs, to deliver ADRs, register the
transfer, split-up or combination of ADRs and (subject to Article (24) hereof)
the withdrawal of Deposited Securities until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and any of
their agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any,
with respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, and are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities, and (v) the
Shares presented for deposit have not been stripped of any rights or
entitlements. Except as contemplated by Section 2.12 of the Deposit Agreement,
each such person shall also be deemed to represent that Shares deposited by
that person are not Restricted Securities, and that the deposit of Shares or
sale of ADSs by that person is not restricted, under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and
issuance of ADSs in respect thereof. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at
the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depositary, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary, the Company and
the Custodian such proof of citizenship or residence, taxpayer status, payment
of all applicable taxes or other governmental charges, exchange control
approval and approval for deposit, legal or beneficial ownership of ADSs and
Deposited Securities, compliance with applicable laws and regulations and the
terms of the Deposit Agreement and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information or
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration of Shares on the books
of the Company or of the appointed agent of the Company for the registration
and transfer of Shares) as the Depositary or the Custodian may deem reasonably
necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations under the Deposit
Agreement. The Depositary and the Registrar, as applicable, may withhold the
execution or Delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or, to the extent not limited by Article 24 hereof, the
Delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed, or such representations are made or
such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's reasonable satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the
deposit of Shares, a fee not in excess of U.S.
$5.00 per 100 ADSs (or portion thereof) so issued
under the terms of the Deposit Agreement (excluding
issuances pursuant to paragraphs (iii) and (iv)
below);
(ii) to any person surrendering ADSs for cancellation
and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S.
$2.00 per 100 ADSs (or portion thereof) held for
the distribution of cash dividends or other cash
distributions (i.e. upon the sale of rights and
other entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of
U.S. $5.00 per 100 ADSs (or portion thereof) issued
upon the distribution of ADSs pursuant to (a) a
stock dividend, stock split or other free
distribution of stock or (b) the exercise of
rights; and
(v) to any person presenting an ADR for transfer, U.S.
$1.50 per certificate presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
for deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties)
and other governmental charges;
(ii) such registration fees as may from time to time be
in effect for the registration of Shares or other
Deposited Securities on the share register and
applicable to transfers of Shares or other
Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary
in the conversion of foreign currency;
(v) such fees and expenses as are incurred by the
Depositary in connection with compliance with
exchange control regulations and other regulatory
requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited
Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary
and the Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents
and agrees, that title to this Receipt (and to each ADS evidenced hereby)
shall be transferable on the same terms as a certificated security under the
laws of the State of New York, provided that the Receipt has been properly
endorsed or is accompanied by proper instruments of transfer. Notwithstanding
any notice to the contrary, the Depositary and the Company may deem and treat
the Holder of this Receipt (that is, the person in whose name this Receipt is
registered on the books of the Depositary) as the absolute owner thereof for
all purposes. Neither the Company nor the Depositary shall have any obligation
nor be subject to any liability under the Deposit Agreement or this Receipt to
any holder of this Receipt or any Beneficial Owner unless such holder is the
registered Holder of this Receipt or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the registered
Holder thereof.
(12) Validity of Receipt. The Holder(s) of this Receipt (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual
or facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts.
Receipts bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly
authorized signatory of the Depositary or the Registrar, as the case may be,
shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
(13) Available Information; Reports; Inspection of Transfer Books.
The Company is subject to the periodic reporting requirements of the Exchange
Act and accordingly files certain information with the Commission. These
reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either
of them as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for
inspection by the Company and by the Holders of such Receipts, provided that
such inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related
to the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties
hereunder, or at the reasonable written request of the Company subject, in all
cases, to Article (24) hereof.
Dated: ________________ CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By:_______________________
Authorized Signatory
By:_______________________
Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement,
the Depositary will (i) if at the time of receipt thereof any amounts received
in a Foreign Currency can in the judgment of the Depositary be converted such
dividend, distribution or proceeds into Dollars upon the terms of the Deposit
Agreement on a practicable basis into Dollars transferable to the United
States, promptly convert or cause to be converted), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9 of the
Deposit Agreement, and (iii) distribute the amount thus received (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary as
provided in the Deposit Agreement and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a free
distribution of Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record
Date, additional ADSs, which represent in aggregate the number of Shares
received as such free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, payment of (a) the applicable fees
and charges of, and expenses incurred by, the Depositary as provided in the
Deposit Agreement and (b) taxes), or (ii) if additional ADSs are not so
distributed, each ADS issued and outstanding after the ADS Record Date shall,
to the extent permissible by law, thenceforth also represent rights and
interest in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net (a) of the applicable fees and
charges of, and the expenses incurred by, the Depositary, as provided in the
Deposit Agreement and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares or ADSs, as the case may be,
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or, if the Company in
the fulfillment of its obligations under the Deposit Agreement, has furnished
an opinion of U.S. counsel determining that Shares must be registered under
the Securities Act or other laws in order to be distributed to Holders (and no
such registration statement has been declared effective), the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of such (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available
to Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to
any Holders only if (i) the Company shall have timely requested that such
rights be made available to Holders, (ii) the Depositary shall have received
the documentation contemplated in the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution of rights is
reasonably practicable. If such conditions are not satisfied or if the Company
requests that the rights not be made available to Holders of ADSs, the
Depositary shall sell the rights as described below. In the event all
conditions set forth above are satisfied, the Depositary shall establish an
ADS Record Date (upon the terms described in the Deposit Agreement) and
establish procedures (x) to distribute rights to purchase additional ADSs (by
means of warrants or otherwise), (y) to enable the Holders to exercise the
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary as provided in the
Deposit Agreement and (b) taxes), and (z) to deliver ADSs upon the valid
exercise of such rights. The Company shall assist the Depositary to the extent
necessary in establishing such procedures. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i)
the Company does not timely request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines that it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity, at such place and upon such terms
(including public or private sale) as it may deem practical. The Company shall
assist the Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described
above, the Depositary shall allow such rights to lapse. The Depositary shall
not be responsible for (i) any failure to determine that it may be lawful and
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise, or (iii) the content of any materials
forwarded to the ADR Holders by the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable
law) of the rights or the securities to which any rights relate may be
required in order for the Company to offer such rights or such securities to
Holders and to sell the securities represented by such rights, the Depositary
will not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities Act (and other applicable law)
covering such offering is in effect or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would
be distributed, in each case reasonably satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions
of the Securities Act or any other applicable laws. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount
on account of taxes or other governmental charges, the amount distributed to
the Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges. The rights issued
by the Company may not be negotiable, and if negotiable, a liquid market for
rights may not exist. This may adversely affect (1) the ability of the
Depositary to dispose of such rights or (2) the amount the Depositary would
realize upon disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities
to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make
such distribution unless (i) the Company shall have requested the Depositary
to make such distribution to Holders, (ii) the Depositary shall have received
the documentation contemplated in the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable. Upon satisfaction of such conditions, the Depositary shall
distribute the property so received to the Holders of record, as of the ADS
Record Date, in proportion to the number of ADSs held by them respectively and
in such manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any
taxes withheld. The Depositary may dispose of all or a portion of the property
so distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell
or cause such property to be sold in a public or private sale, at such place
or places and upon such terms as it may deem practicable and shall, (i) cause
the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary
as provided in the Deposit Agreement , and (b) taxes) to the Holders as of the
ADS Record Date upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of Holders of ADSs in any way it deems reasonably
practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that
it intends to exercise its right of redemption in respect of any of the
Deposited Securities, and satisfactory documentation as contemplated by the
Deposit Agreement, and upon determining that such proposed redemption is
practicable, the Depositary shall (to the extent practicable) provide to each
Holder a notice setting forth the Company's intention to exercise the
redemption rights and any other particulars set forth in the Company's notice
to the Depositary. The Depositary shall instruct the Custodian to present to
the Company the Deposited Securities in respect of which redemption rights are
being exercised against payment of the applicable redemption price. Upon
receipt of confirmation that the redemption has taken place and that funds
representing the redemption price have been received, the Depositary shall
convert, transfer, distribute the proceeds (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary as provided in the
Deposit Agreement, and (b) taxes), retire ADSs and cancel ADRs upon delivery
of such ADSs by Holders thereof upon the terms of the Deposit Agreement. If
less than all outstanding Deposited Securities are redeemed, the ADSs to be
retired will be selected by lot or on a pro rata basis, as may be determined
by the Depositary. The redemption price per ADS shall be the dollar equivalent
of per share amount received by the Depositary upon the redemption of the
Deposited Securities represented by American Depositary Shares (subject to the
terms of the Deposit Agreement and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether
in cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by
each ADS, or whenever the Depositary shall receive notice of any meeting of,
or solicitation of consents or proxies of, holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, solicitation of any
consent or any other matter, the Depositary shall fix a record date ("ADS
Record Date") for the determination of the Holders of Receipts who shall be
entitled to receive such distribution, to give instructions for the exercise
of voting rights at any such meeting, to give or withhold such consent, to
receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in the Republic
of India. Subject to applicable law and the terms and conditions of this
Receipt and the Deposit Agreement, only the Holders of Receipts at the close
of business in New York on such ADS Record Date shall be entitled to receive
such distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities.
(a) ADS Voting Instructions. As soon as practicable after receipt of
notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect
of such meeting or solicitation of such consent or proxy. The Depositary
shall, if requested in writing in a timely manner by the Company (the
Depositary having no obligation to take any further action if the request
shall not have been received by the Depositary at least 30 days prior to the
date of such vote or meeting), at the Company's expense and provided no U.S.
legal prohibitions exist, distribute to Holders: (a) such notice of meeting or
solicitation of consent or proxy, (b) a statement that the Holders as of the
ADS Record Date will be entitled, subject to any applicable law, the
provisions of the Deposit Agreement, the Company's Articles of Association and
Memorandum of Association and the provisions of or governing Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs, (c) a brief statement as to the manner in which such voting
instructions may be given, and (d) summaries of any materials and other
documents provided by the Company for the purpose of enabling such Holders to
exercise such voting rights. Voting instructions may be given only in respect
of a number of ADSs representing an integral number of Deposited Securities.
Upon the timely receipt of voting instructions from a Holder of ADSs as of the
ADS Record Date in the manner specified by the Depositary, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, the provisions of the Articles of
Association and Memorandum of Association of the Company and the provisions of
the Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities represented by ADSs held by such Holder,
either (x) in the event of voting on a show of hands, in which case the
Depositary shall vote, or shall instruct the Custodian to vote, all Shares
and/or other Deposited Securities held under the terms of the Deposit
Agreement in accordance with instructions timely received from Holders of a
majority of the American Depositary Shares for which instructions have been
given to the Depositary, or (y) in the event of voting on a poll, in which
case the Depositary shall vote, or shall instruct the Custodian to vote, the
Shares and/or Deposited Securities in accordance with the instructions timely
received from the Holders giving instructions.
For the purpose of this Receipt and the Deposit Agreement, in the
event that the Depositary receives an express instruction from a Holder as of
the ADS Record Date to demand a poll with respect to any matter to be voted on
by Holders of the American Depositary Shares, the Depositary shall notify the
Chairman of the Company or a person designated by the Chairman of such
instruction and request the Chairman of the Company or such designee to demand
a poll with respect to such matters. The Company agrees that the Chairman of
the Company or such designee will make their reasonable best efforts to demand
a poll at the meeting at which such matters are to be voted on and to vote
such Shares in accordance with the instructions of the Holders of the American
Depositary Shares.
The Depositary has been advised that under Indian law, as in effect
as of the date of the Deposit Agreement, voting of Shares is by show of hands
(in which case each shareholder has one (1) vote regardless of the number of
Shares owned) unless a poll is validly demanded and a proxy holder may not
vote except in a poll vote. In addition, the Company's Articles of Association
and Memorandum of Association, as in effect as of the date hereof, provide
that a poll may be demanded at any general meeting by a holder or holders
holding (a) at least 10% of the total Shares entitled to vote on a resolution
or (b) Shares with an aggregate paid up capital of at least Rs.50,000. As a
result, unless specifically instructed by a Holder or Holders holding (a) at
least 10% of the total Shares (represented by such Holder(s)' American
Depositary Shares) entitled vote on a resolution or (b) Shares (represented by
such Holder(s)' American Depositary Shares) with an aggregate paid-up capital
of at least Rs.50,000, the Chairman of the Company or his designee may not be
able to demand a poll at the instruction of Holders. The Company's Articles of
Association and Memorandum of Association (as in effect on the date hereof)
further provide that the Chairman shall cast the deciding vote, in the event
of a tie.
(b) Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of for purposes of establishing a quorum or otherwise, Deposited
Securities represented by ADSs except (a) pursuant to and in accordance with
the voting instructions timely received from Holders, or (b) as otherwise
contemplated herein in the event of voting by show of hands. If the Depositary
timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such instructions.
Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be
voted. Notwithstanding anything else contained in the Deposit Agreement or
this Receipt, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation or consents or proxies, of
holders of Deposited Securities if the taking of such action would violate
U.S. laws. The Company agrees to take any and all actions reasonably necessary
to enable Holders and Beneficial Owners to exercise the voting rights accruing
to the Deposited Securities and to deliver to the Depositary an opinion of
U.S. counsel addressing any actions requested to be taken if so requested by
the Depositary. There can be no assurance that Holders generally or any Holder
in particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by
the Depositary or the Custodian in exchange for, or in conversion of or
replacement of or otherwise in respect of, such Deposited Securities shall, to
the extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right to
receive such additional securities. The Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of satisfactory documentation contemplated
by the Deposit Agreement, execute and deliver additional Receipts as in the
case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in this Exhibit A to the Deposit Agreement,
specifically describing such new Deposited Securities or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with
the Company's approval, and shall if the Company requests, subject to receipt
of satisfactory legal documentation contemplated in the Deposit Agreement,
sell such securities at public or private sale, at such place or places and
upon such terms as it may deem proper and may allocate the net proceeds of
such sales (net of (a) fees and charges of, and expenses incurred by, the
Depositary as provided in the Deposit Agreement and (b) taxes) for the account
of the Holders otherwise entitled to such securities and distribute the net
proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or feasible to make such securities available to Holders in
general or any Holder in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions
of the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement and
this Receipt, by reason of any provision of any present or future law or
regulation of the United States, the Republic of India or any other country,
or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future of the Articles of
Association and Memorandum of Association of the Company or any provision of
or governing any Deposited Securities, or by reason of any act of God or war
or other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii)
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement or in the Articles of Association and Memorandum
of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in good faith reliance upon the
advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a
Holder or Beneficial Owner to benefit from any distribution, offering, right
or other benefit which is made available to holders of Deposited Securities
but is not, under the terms of this Deposit Agreement, made available to
Holders of ADS or (v) for any consequential or punitive damages for any breach
of the terms of this Deposit Agreement. The Depositary, its controlling
persons, its agents, any Custodian and the Company, its controlling persons
and its agents may rely and shall be protected in acting upon any written
notice, request or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties. No disclaimer of
liability under the Securities Act is intended by any provision of the Deposit
Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith. The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to
Holders or Beneficial Owners or other persons, except that the Depositary and
its agents agree to perform their obligations specifically set forth in this
Deposit Agreement without negligence or bad faith. The Depositary and its
agents shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which any vote is
cast or the effect of any vote, provided that any such action or omission is
in good faith and in accordance with the terms of this Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for the
content of any information submitted to it by the Company for distribution to
the Holders or for any inaccuracy of any translation thereof, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validity or worth of the Deposited Securities or for any
tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for
allowing any rights to lapse upon the terms of this Deposit Agreement or for
the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
under the Deposit Agreement by written notice of resignation delivered to the
Company, such resignation to be effective on the earlier of (i) the 60th day
after delivery thereof to the Company (whereupon the Depositary shall be
entitled to take the actions contemplated in Article (23) hereof), or (ii) the
appointment by the Company of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may at
any time be removed by the Company by written notice of such removal which
notice shall be effective on the earlier of (i) the 60th day after delivery
thereof to the Depositary (whereupon the Depositary shall be entitled to take
the actions contemplated in Article (23) hereof), or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement. In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall use its best efforts to appoint
a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor (other than as contemplated in the Deposit
Agreement). The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in the Deposit Agreement),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly notify Holders of its
appointment. Any corporation into or with which the Depositary may be merged
or consolidated shall be the successor of the Depositary without the execution
or filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of
this Article 22, the Deposit Agreement and applicable law, any provisions of
this Receipt or the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment
or supplement which shall impose or increase any fees or charges (other than
the charges in connection with foreign exchange control regulations, and taxes
and other governmental charges, delivery and other such expenses), or which
shall otherwise materially prejudice any substantial existing right of Holders
or Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b)
the ADSs to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by
Holders, shall be deemed not to materially prejudice any substantial rights of
Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time
any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s), to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or
supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
this Receipt at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice
of such termination to the Holders of all Receipts then outstanding at least
30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in herein and in the
Deposit Agreement, the Depositary may terminate the Deposit Agreement by
providing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Holders' Receipt(s) at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in Article (2) hereof and in the Deposit
Agreement and subject to the conditions and restrictions therein set forth,
and upon payment of any applicable taxes or governmental charges, be entitled
to Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after
the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the
Depositary shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under the
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall
sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale
of any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination of the Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under the Deposit Agreement with respect to the Receipts and
the Shares, the Deposited Securities and the ADSs, except to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of
the General Instructions to the Form F-6 Registration Statement, as amended
from time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf and on behalf of their
clients, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. The Depositary may issue ADSs against evidence of
rights to receive Shares from the Company, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares. In its capacity as Depositary, the Depositary shall not lend Shares or
ADSs; provided, however, that the Depositary may, except in the case of
Restricted ADSs, (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or
Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to
be delivered by the Applicant under such Pre-Release Transaction, (x) agrees
to indicate the Depositary as owner of such Shares or ADSs in its records and
to hold such Shares or ADSs in trust for the Depositary until such Shares or
ADSs are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or ADSs and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or
disregard such limit from time to time as it deems appropriate. The Depositary
may also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it
deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for
the benefit of the Holders (other than the Applicant).
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code
is ________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:_____________________
By:
Title:
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatsoever.
If the endorsement be executed by
an attorney, executor,
administrator, trustee or guardian,
the person executing the
endorsement must give his/her full
title in such capacity and proper
evidence of authority to act in
such capacity, if not on file with
the Depositary, must be forwarded
with this Receipt.
__________________________
SIGNATURE GUARANTEED All endorsements or assignments of
Receipts must be guaranteed by a
member of a Medallion Signature
Program approved by the Securities
Transfer Association, Inc.
Legends
[The Receipts issued in respect of Partial Entitlement American
Depositary Shares shall bear the following legend on the face of the
Receipt: "This Receipt evidences American Depositary Shares
representing partial entitlement' equity shares, par value Rs.5 per
share ("Shares"), of XXXXXX.XXX INDIA LIMITED and as such do not
entitle the holders thereof to the same per-share entitlement as
other Shares (which are "full entitlement" Shares) issued and
outstanding at such time. The American Depositary Shares represented
by this Receipt shall entitle holders to distributions and
entitlements identical to other American Depositary Shares when the
Shares represented by such American Depositary Shares become "full
entitlement" Shares.]
[This certificate represents "Restricted ADSs" issued upon the terms
of Section 2.12 of the Deposit Agreement (as hereinafter defined).
This certificate and the Restricted ADSs represented hereby may not
be sold or otherwise transferred without an effective registration
statement for such securities under the Securities Act of 1933, as
amended, or unless an exemption from registration under said act is
available for such sale or transfer.]
B-1
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the
persons depositing Shares or surrendering ADSs for cancellation agree to pay
the following fees of the Depositary:
------------------------------------- ------------------------------------- -------------------------------------
Service Rate By Whom Paid
------------------------------------- ------------------------------------- -------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or party receiving ADSs.
issuances contemplated by
paragraph (4) below).
------------------------------------- ------------------------------------- -------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or
Securities, property and fraction thereof) surrendered. making withdrawal.
cash against surrender of ADSs.
------------------------------------- ------------------------------------- -------------------------------------
(3) Distribution of cash Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
------------------------------------- ------------------------------------- -------------------------------------
(4) Distribution ADSs pursuant to Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
(i) stock dividends, stock fraction thereof) issued.
splits or other free stock
distributions, or (ii)
exercise of rights.
------------------------------------- ------------------------------------- -------------------------------------
(5) Transfer of ADRs $1.50 per certificate presented Person presenting certificate for
transfer.
------------------------------------- ------------------------------------- -------------------------------------
II. Charges
Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following
charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense
of the person depositing Shares or Holders and Beneficial Owners of
ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS................................................................2
Section 1.1 ADS Record Date.........................................2
Section 1.2 Affiliate...............................................2
Section 1.3 American Depositary Receipt(s); Receipt(s);
and ADR(s)..............................................2
Section 1.4 American Depositary Share(s) and ADS(s).................2
Section 1.5 Applicant...............................................3
Section 1.6 Beneficial Owners.......................................3
Section 1.7 Business Day............................................3
Section 1.8 Commission..............................................3
Section 1.9 Company.................................................3
Section 1.10 Custodian...............................................3
Section 1.11 Deliver.................................................3
Section 1.12 Deposit Agreement.......................................3
Section 1.13 Depositary..............................................3
Section 1.14 Deposited Securities....................................3
Section 1.15 Dollars.................................................4
Section 1.16 DTC.....................................................4
Section 1.17 DTC Participant.........................................4
Section 1.18 Exchange Act............................................4
Section 1.19 Foreign Currency........................................4
Section 1.20 Full Entitlement ADR(s), Full Entitlement ADS(s)
and Full Entitlement Share(s)...........................4
Section 1.21 Holder(s)...............................................4
Section 1.22 National Securities Depository Limited and NSDL.........4
Section 1.23 Partial Entitlement ADR(s), Partial Entitlement
ADS(s) and Partial Entitlement Share(s).................4
Section 1.24 Pre-Release Transaction.................................4
Section 1.25 Principal Office........................................4
Section 1.26 Registrar...............................................5
Section 1.27 Restricted ADR(s) and Restricted ADS(s).................5
Section 1.28 Restricted Securities...................................5
Section 1.29 Restricted Share(s).....................................5
Section 1.30 Rupees and Rs...........................................5
Section 1.31 Securities Act..........................................5
Section 1.32 Share Registrar.........................................5
Section 1.33 Shares..................................................6
Section 1.34 United States...........................................6
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS................6
Section 2.1 Appointment of Depositary...............................6
Section 2.2 Form and Transferability of Receipts....................6
Section 2.3 Deposit with Custodian..................................8
Section 2.4 Registration and Safekeeping of Deposited
Securities..............................................9
Section 2.5 Execution and Delivery of Receipts.....................10
Section 2.6 Transfer, Combination and Split-up of Receipts.........10
Section 2.7 Surrender of ADSs and Withdrawal of Deposited
Securities.............................................11
Section 2.8 Limitations on Execution and Delivery, Transfer,
etc. of Receipts; Suspension of Delivery,
Transfer, etc..........................................13
Section 2.9 Lost Receipts, etc.....................................14
Section 2.10 Cancellation and Destruction of Surrendered
Receipts; Maintenance of Records.......................14
Section 2.11 Partial Entitlement ADSs...............................14
Section 2.12 Restricted ADSs........................................15
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs.............16
Section 3.1 Proofs, Certificates and Other Information.............16
Section 3.2 Liability for Taxes and Other Charges..................17
Section 3.3 Representations and Warranties on Deposit of Shares....17
Section 3.4 Compliance with Information Requests...................18
Section 3.5 Ownership Restrictions.................................18
ARTICLE IV
THE DEPOSITED SECURITIES..................................................19
Section 4.1 Cash Distributions.....................................19
Section 4.2 Distribution in Shares.................................19
Section 4.3 [Intentionally omitted]................................20
Section 4.4 Distribution of Rights to Purchase Additional ADSs.....20
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares........................................22
Section 4.6 Distributions with Respect to Deposited Securities
in Bearer Form.........................................23
Section 4.7 Redemption.............................................23
Section 4.8 Conversion of Foreign Currency.........................23
Section 4.9 Fixing of ADS Record Date..............................24
Section 4.10 Voting of Deposited Securities.........................25
Section 4.11 Changes Affecting Deposited Securities.................27
Section 4.12 Available Information..................................27
Section 4.13 Reports................................................28
Section 4.14 List of Holders........................................28
Section 4.15 List of Restricted Securities Owners...................28
Section 4.16 Taxation...............................................28
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.............................29
Section 5.1 Maintenance of Office and Transfer Books by
the Registrar..........................................29
Section 5.2 Exoneration............................................30
Section 5.3 Standard of Care.......................................31
Section 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary....................31
Section 5.5 The Custodian..........................................32
Section 5.6 Notices and Reports....................................33
Section 5.7 Issuance of Additional Shares, ADSs etc................33
Section 5.8 Indemnification........................................34
Section 5.9 Fees and Charges of Depositary.........................35
Section 5.10 Pre-Release Transactions...............................36
Section 5.11 Restricted Securities Owners...........................37
ARTICLE VI
AMENDMENT AND TERMINATION.................................................37
Section 6.1 Amendment/Supplement...................................37
Section 6.2 Termination............................................37
ARTICLE VII
MISCELLANEOUS.............................................................38
Section 7.1 Counterparts...........................................39
Section 7.2 No Third-Party Beneficiaries...........................39
Section 7.3 Severability...........................................39
Section 7.4 Holders and Beneficial Owners as Parties;
Binding Effect.........................................39
Section 7.5 Notices................................................39
Section 7.6 Governing Law and Jurisdiction.........................40
Section 7.7 Assignment.............................................42
Section 7.8 Compliance with U.S. Securities Laws...................42
Section 7.9 Titles and References..................................42
EXHIBITS
Exhibit A Form of Receipt
Exhibit B Fee Schedule