EXHIBIT 4.4
--------------------------------------------------------------------------------
XXXXXX INFOWAY LIMITED
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ISSUED THEREUNDER
________________________________
AMENDMENT NO. 1
TO
DEPOSIT AGREEMENT
DATED AS OF JANUARY 6, 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT, dated as of January 6, 2000 (the
"Amendment"), by and among Xxxxxx Infoway Limited, a limited liability company
organized under the laws of the Republic of India (the "Company"), Citibank,
N.A., a national banking association organized under the laws of the United
States of America and acting as depositary, and any successor depositary
hereunder (the "Depositary"), and all Holders and Beneficial Owners of American
Depositary Shares evidenced by American Depositary Receipts issued under the
Deposit Agreement.
W I T N E S S E T H T H A T
- - - - - - - - - - - - - -
WHEREAS, the parties hereto entered into that certain Deposit Agreement,
dated as of October 18, 1999 (the "Deposit Agreement"), for the creation of
American Depositary Receipts ("ADRs") evidencing American Depositary Shares
("ADSs") representing the Shares (as defined in the Deposit Agreement) so
deposited and for the execution and delivery of such ADRs evidencing such ADSs;
WHEREAS, the Company has instructed the Depositary to change the ratio of
Shares (as defined in the Deposit Agreement) to ADSs from (i) one (1) Share to
one (1) ADS to (ii) one fourth (1/4) of a Share to one (1) ADS, and desires to
amend the Deposit Agreement to reflect such change; and,
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company and
the Depositary deem it necessary and desirable to amend the Deposit Agreement
and the form of ADR annexed thereto as Exhibit A for the purposes set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. DEFINITIONS. Unless otherwise defined in this Amendment,
-----------
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
--------------------------------------------------------------------------------
2
--------------------------------------------------------------------------------
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
-------------------------------
SECTION 2.01. DEPOSIT AGREEMENT. All references in the Deposit Agreement
-----------------
to the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Deposit Agreement, dated as of October 18, 1999, as
amended by this Amendment.
SECTION 2.02. CHANGE OF RATIO. All references made in the Deposit
---------------
Agreement to each American Depositary Share representing one (1) Share shall, as
of the Effective Date, refer to each American Depositary Share representing one
fourth (1/4) of a Share.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. CHANGE OF RATIO. All references to each American Depositary
---------------
Share representing one (1) Share made in the ADRs issued and outstanding as of
the Effective Date shall refer to each American Depositary Share representing
one fourth (1/4) of a Share.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.01. REPRESENTATIONS AND WARRANTIES. The Company represents and
------------------------------
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly
and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder in
the Republic of India, neither of such agreements need to be filed or
recorded with any court or other authority in the Republic of India, nor
does any stamp or similar tax need to be paid in the Republic of India on
or in respect of such agreements; and
--------------------------------------------------------------------------------
3
--------------------------------------------------------------------------------
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. EFFECTIVE DATE. This Amendment is dated as of the date set
--------------
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. NEW ADRS. From and after the Effective Date, the
--------
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued
hereunder after the Effective Date, once such new ADRs are available, whether
upon the deposit of Shares or other Deposited Securities or upon the transfer,
combination or split-up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
---------
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. NOTICE OF AMENDMENT TO HOLDERS. The Depositary is hereby
------------------------------
directed to send notices informing the Holders of (i) the terms of this
Amendment, (ii) the Effective Date of this Amendment and (iii) that the Holders
shall be given the opportunity, but that it is unnecessary, to surrender
outstanding Receipts.
SECTION 5.04. INDEMNIFICATION. The Company agrees to indemnify and hold
---------------
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein, except to the
extent such liability is due to the negligence or bad faith of any of them.
SECTION 5.05. RATIFICATION. Except as expressly amended hereby, the
------------
terms, covenants and conditions of the Deposit Agreement, as originally
executed, shall remain in full force and effect.
--------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
XXXXXX INFOWAY LIMITED, as Company
By: /s/ X. Xxxxxxx
--------------
Name: X. Xxxxxxx
Title: Chief Executive Officer
CITIBANK, N.A., as Depositary
By: /s/ S.T. Yang
-------------
Name: S.T. Yang
Title: Vice President
--------------------------------------------------------------------------------
5
--------------------------------------------------------------------------------
FORM OF OPINION OF COUNSEL TO ISSUER TO BE RECEIVED UPON
AMENDMENT OF DEPOSIT AGREEMENT
The Issuer's local counsel opinion should address the following:
AUTHORITY AND GOOD STANDING
---------------------------
1. The Issuer has been duly incorporated and is a validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation with power and authority to enter into the Deposit Agreement,
dated as of October 18, 1999 and the Amendment No. 1 to the Deposit
Agreement (as so amended, the "Deposit Agreement") and to file the
Registration Statements on Form F-6 and Post-Effective Amendments to
Registration Statements on Form F-6 ( as so amended the "Registration
Statements") and Forms 20-F with the SEC and to engage in the transactions
contemplated therein. The execution of the Deposit Agreement and the
signing and filing of the Registration Statements with the SEC has been
duly authorized by all requisite corporate action by and/or on behalf of
the Issuer.
DUE EXECUTION AND LEGAL OBLIGATION
----------------------------------
2. The Deposit Agreement has been duly executed and delivered for and
on behalf of the Issuer by an officer of the Issuer duly elected or
appointed and thereunto duly authorized and constitutes the legal, valid
and binding agreement of the Issuer, enforceable against the Issuer in
accordance with its terms in the Republic of India except as may be limited
by bankruptcy, insolvency, moratorium or similar laws affecting creditors'
rights generally and general principles of equity. The Registration
Statements have been signed for and on behalf of the Issuer by officers
thereunto duly authorized and by directors duly elected or appointed.
CONSENTS, PERMITS, FILINGS
--------------------------
3. All requisite permissions, consents, approvals, authorizations and
orders (if any) have been obtained and all requisite filings (if any) have
been made in the Republic of India to enable the Issuer to enter into the
Deposit Agreement, to file the Registration Statements with the SEC and to
engage in the transactions contemplated therein.
LOCAL FORMALITIES
-----------------
4. Neither the Deposit Agreement, nor the Registration Statements nor
any other document or instrument delivered by the Issuer to the Depositary
needs to be recorded or filed with any agency or authority under Indian law
nor does any stamp or
--------------------------------------------------------------------------------
6
--------------------------------------------------------------------------------
similar tax need to be paid under Indian law to ensure the legality,
validity or admissibility into evidence of the Deposit Agreement.
NO CONFLICT
-----------
5. None of the terms of the Deposit Agreement violate or conflict
with, nor does the execution and delivery of the Deposit Agreement, the
filing of the Registration Statement or the consummation of the
transactions contemplated therein violate, or conflict with, the
Certificate of Incorporation of the Issuer, the Bylaws of the Issuer, or
any agreement to which the Issuer is a party or by which the Issuer is
bound.
NO VIOLATION OF LAW
-------------------
6. None of the terms nor the transactions contemplated by the Deposit
Agreement violate any law, rule, regulation, order, judgment,
administrative decree or regulation of the Republic of India or to which
the Issuer is subject.
ENFORCEABILITY
--------------
7. The Deposit Agreement is a valid, binding and enforceable contract
under the laws of the Republic of India. The Depositary will not (absent
negligence, bad faith or breach of contract and general principles of
agency) be subject to any potential liability under Indian law for taking
the actions contemplated in the Deposit Agreement.
--------------------------------------------------------------------------------
7
