Exhibit (a)(i)
Amended and Restated
Deposit Agreement, dated as of
September 27, 2004
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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
TATA MOTORS LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES ISSUED HEREUNDER
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Dated as of September 27, 2004
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS......................................................2
Section 1.1 "Affiliate"......................................................2
Section 1.2 "ADS Record Date"................................................2
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"......2
Section 1.4 "American Depositary Share(s)" and "ADS(s)"......................2
Section 1.5 "Applicant"......................................................3
Section 1.6 "Beneficial Owner"...............................................3
Section 1.7 "Certificated ADS(s)"............................................3
Section 1.8 "Commission".....................................................3
Section 1.9 "Custodian"......................................................3
Section 1.10 "Deliver" and "Delivery".........................................3
Section 1.11 "Deposit Agreement"..............................................3
Section 1.12 "Deposited Securities"...........................................3
Section 1.13 "Dollars" and "$"................................................3
Section 1.14 "DTC"............................................................3
Section 1.15 "DTC Participant"................................................4
Section 1.16 "Exchange Act"...................................................4
Section 1.17 "Foreign Currency"...............................................4
Section 1.18 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)"......................................4
Section 1.19 "Holder(s)"......................................................4
Section 1.20 "India"..........................................................4
Section 1.21 "Indian Central Depository System"...............................4
Section 1.22 "Indian Stock Exchanges".........................................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"......................................................4
Section 1.27 "Restricted Securities"..........................................5
Section 1.28 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares"..........................................................5
Section 1.29 "Rupees" and "Rs."...............................................5
Section 1.30 "Securities Act".................................................5
Section 1.31 "Share Registrar"................................................5
Section 1.32 "Shares".........................................................5
Section 1.33 "Uncertificated ADS(s)"..........................................5
Section 1.34 "United States" and "U.S.".......................................5
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS......................................................5
Section 2.1 Appointment of Depositary........................................6
Section 2.2 Form and Transferability of ADSs.................................6
Section 2.3 Deposit with Custodian...........................................7
Section 2.4 Registration and Safekeeping of Deposited Securities.............9
Section 2.5 Issuance of ADSs.................................................9
Section 2.6 Transfer, Combination and Split-up of ADRs......................10
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities........11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc.
of ADRs; Suspension of Delivery, Transfer, etc..................12
Section 2.9 Lost ADRs, etc..................................................13
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records..........................................13
Section 2.11 Partial Entitlement ADSs........................................13
Section 2.12 Certificated/Uncertificated ADSs................................14
Section 2.13 Restricted ADSs.................................................15
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs....17
Section 3.1 Proofs, Certificates and Other Information......................17
Section 3.2 Liability for Taxes and Other Charges...........................17
Section 3.3 Representations and Warranties on Deposit of Shares.............18
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 Elective Distributions in Cash or Shares........................20
Section 4.4 Distribution of Rights to Purchase Additional ADSs..............21
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..................................24
Section 4.9 Fixing of ADS Record Date.......................................24
Section 4.10 Voting of Deposited Securities..................................25
Section 4.11 Changes Affecting Deposited Securities..........................26
Section 4.12 Available Information...........................................27
Section 4.13 Reports.........................................................27
Section 4.14 List of Holders.................................................27
Section 4.15 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................................................30
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................31
Section 5.5 The Custodian...................................................31
Section 5.6 Notices and Reports.............................................32
Section 5.7 Issuance of Additional Shares, ADSs etc.........................34
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....................................36
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....................................................38
Section 7.2 No Third-Party Beneficiaries....................................38
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......................................................41
Section 7.8 Compliance with U.S. Securities Laws............................41
Section 7.9 Indian Law References...........................................41
Section 7.10 Titles and References...........................................42
Section 7.11 Amendment and Restatement.......................................42
EXHIBITS
Form of ADR ...............................................................A-1
Fee Schedule ...............................................................B-1
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of September 27, 2004, by
and among (i) TATA MOTORS LIMITED, a company 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 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 (formerly known as Tata Engineering and Locomotive
Co. Ltd.) and the Depositary previously entered into (i) a Rule 144A Deposit
Agreement, dated as of July 15, 1994, as amended by Amendment No. 1 to Rule 144A
Deposit Agreement, dated as of July 19, 1996, as supplemented by a letter
agreement, dated August 13, 1996, and as further supplemented by a letter
agreement, dated August 19, 2002, as further amended by Amendment No. 2 to Rule
144A Deposit Agreement, dated as of September 30, 2002, and as supplemented by a
letter agreement, dated July 31, 2003 (the Rule 144A Deposit Agreement as so
amended and supplemented, the "Rule 144A Deposit Agreement"), to provide for the
deposit of Shares and the creation of Rule 144A Global Depositary Shares (the
"Rule 144A GDSs") representing the Shares so deposited; and (ii) an
International Deposit Agreement, dated as of July 15, 1994, as amended by
Amendment No. 1 to International Deposit Agreement, dated as of July 19, 1996,
as supplemented by a letter agreement, dated August 13, 1996, and as further
supplemented by a letter agreement, dated August 19, 2002, and as further
amended by Amendment No. 2 to International Deposit Agreement, dated as of
September 30, 2002, and as supplemented by letter agreements, dated July 31,
2003 and April 27, 2004 (the International Deposit Agreement as so amended and
supplemented, the "International Deposit Agreement"), to provide for the deposit
of Shares and the creation of International Global Depositary Shares (the
"International GDSs") evidenced by International Global Depositary Receipts (the
"International GDRs"), such International GDSs representing the Shares so
deposited; and
WHEREAS, the Company desires (i) to amend and restate the International
Deposit Agreement to convert the International GDSs into American Depositary
Shares (the "ADSs") listed for trading on The New York Stock Exchange, Inc. (the
"NYSE") (the depositary receipts facility for such NYSE-listed ADSs, the
"NYSE-listed ADR Facility" or the "ADR Facility"); 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 (as
hereinafter defined) are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and
WHEREAS, the Shares are currently listed for trading on The Stock Exchange
Mumbai (the "BSE"), the National Stock Exchange of India Limited (the "NSE"),
the Madhya Pradesh Stock Exchange Limited, the Madras Stock Exchange Limited and
the Calcutta Stock Exchange Association Limited (collectively, the "Indian Stock
Exchanges") and the American Depositary Shares to be issued pursuant to the
terms of this Deposit Agreement are to be listed for trading on the NYSE; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of the 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:
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
"Affiliate" shall have the meaning given to such term under Regulation C
promulgated by the Commission (as hereinafter defined) under the Securities Act
(as hereinafter defined), or under any successor regulation thereto.
"ADS Record Date" shall have the meaning given to such term in Section 4.9.
"American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)" shall mean the
certificate(s) issued by the Depositary to evidence the American Depositary
Shares issued under the terms of this Deposit Agreement in the form of
Certificated ADSs (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of this Deposit Agreement. An ADR
may evidence any number of ADSs and may, in the case of ADSs held through a
central depository such as DTC, be in the form of a "Balance Certificate."
"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, if issued as
Certificated ADSs (as hereinafter defined) the ADRs issued hereunder to evidence
such ADSs. ADS(s) may be issued under the terms of the Deposit Agreement in the
form of (a) Certificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected
on the direct registration system maintained by the Depositary for such purposes
under the terms of Section 2.12. Unless otherwise specified in this Deposit
Agreement or in any ADR, or unless the context otherwise requires, any reference
to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require. Each ADS shall
represent one (1) Share until there shall occur a distribution upon Deposited
Securities referred to in Section 4.2 or a change in Deposited Securities
referred to in Section 4.11 with respect to which additional ADSs
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are not issued, and thereafter each ADS shall represent the Deposited Securities
determined in accordance with the terms of such Sections.
"Applicant" shall have the meaning given to such term in Section 5.10.
"Beneficial Owner" shall mean, as to any ADS, any person or entity 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.
"Certificated ADS(s)" shall have the meaning given to such term in Section 2.12.
"Commission" shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency thereto in the United States.
"Custodian" shall mean, as of the date hereof, Citibank, N.A., Mumbai Branch,
having its principal office at 81 Xx. Xxxxx Xxxxxx Road, Worli, Mumbai, India
400 018, 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.
"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.
"Deposit Agreement" shall mean this Amended and Restated Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
"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.
"Dollars" and "$" shall refer to the lawful currency of the United States.
"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.
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"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 and cash held in DTC.
"Exchange Act" shall mean the United States Securities Exchange Act of 1934, as
amended from time to time.
"Foreign Currency" shall mean any currency other than Dollars.
"Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and "Full Entitlement
Share(s)" shall have the respective meanings given to such terms in Section
2.11.
"Holder(s)" shall mean the person(s) in whose name ADSs are registered on the
books of the Depositary (or the Registrar, if any) maintained for such purpose.
A Holder may or may not be a Beneficial Owner. If a Holder is not the Beneficial
Owner of the ADS(s) registered in its name, such person shall be deemed, for all
purposes hereunder, to have all requisite authority to act on behalf of the
Beneficial Owners of the ADSs registered in its name.
"India" shall mean the Republic of India.
"Indian Central Depository System" shall mean The National Securities Depository
Limited and the Central Depository Services (India) Limited, which provide the
book-entry settlement for equity securities in the Republic of India, or any
successor entity thereto.
"Indian Stock Exchanges" shall have the meaning set forth in the preamble to
this Deposit Agreement, or such of those stock exchanges and any other stock
exchange(s) in India on which the Deposited Securities may be listed from time
to time. The Company hereby notifies the Depositary and the Depositary hereby
acknowledges that an application for delisting the Shares has been made to each
of the Indian Stock Exchanges other than the BSE and the NSE.
"Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)" and "Partial
Entitlement Share(s)" shall have the respective meanings given to such terms in
Section 2.11.
"Pre-Release Transaction" shall have the meaning given to such term in Section
5.10.
"Principal Office" shall mean, when used with respect to the Depositary, the
principal office of the Depositary at which at any particular time its
depositary receipts business shall be administered, which, at the date of this
Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
"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 ADRs 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
4
notice in writing to the Depositary accepting such appointment and agreeing to
be bound by the applicable terms of this Deposit Agreement.
"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, or (iii) are
subject to other restrictions on sale or deposit under the laws of the United
States, the Republic of India, or under a shareholder agreement or the Articles
of Association of the Company or under the regulations of an 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 (a) covered by an effective resale registration
statement, or (b) exempt from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are
not, when held by such person(s), Restricted Securities.
Section 1.1 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.13.
"Rupees" and "Rs." shall refer to the lawful currency of the Republic of India.
"Securities Act" shall mean the United States Securities Act of 1933, as amended
from time to time.
"Share Registrar" shall mean Tata Share Registry Limited or any other
institution organized under the laws of the Republic of India appointed by the
Company to carry out the duties of registrar for the Shares, and any successor
thereto.
"Shares" shall mean the Company's Ordinary Shares, par value Rs.10 per share,
validly issued and outstanding and fully paid and may, if the Depositary so
agrees after consultation with the Company, include evidence of the right to
receive Shares; provided that in no event shall Shares include evidence of the
right to receive Shares with respect to which the full purchase price has not
been paid or Shares as to which preemptive rights have theretofore not been
validly waived or exercised; provided further, however that, if there shall
occur any change in par value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of
the Shares of the Company, the term "Shares" shall thereafter, to the maximum
extent permitted by law, represent the successor securities resulting from such
event.
"Uncertificated ADS(s)" shall have the meaning given to such term in Section
2.12. "United States" and "U.S." shall have the meaning given to such terms in
Regulation S as promulgated by the Commission under the Securities Act.
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APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
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 and conditions of this Deposit Agreement or by
continuing to hold or beneficially own, from and after the date hereof any
International GDSs issued and outstanding under the International 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 ADR(s), 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 ADR(s), 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 and the applicable ADR(s), the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof.
Form and Transferability of ADSs.
Form. Certificated ADSs shall be evidenced by definitive ADRs which shall be
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. ADRs may be issued under this
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to this Deposit Agreement,
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in this Deposit Agreement or required by law. ADRs 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 ADSs. No ADR and no Certificated ADS evidenced
thereby (other than an International GDS issued and outstanding as of the date
hereof under the terms of the International Deposit Agreement which from and
after the date hereof becomes subject to the terms of this Deposit Agreement in
all respects) 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 ADR shall have been so dated, signed, countersigned and registered.
ADRs 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 or after the delivery of such ADR by the Depositary. The
ADRs 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 ADRs issued hereunder.
Legends. The ADRs may be endorsed with, or have incorporated in the text
thereof, such legends or recitals not inconsistent with the provisions of the
Deposit Agreement as (i) may be necessary to enable the Depositary and the
Company to perform their respective obligations hereunder, (ii) may be required
to comply with any applicable laws or regulations, or with the rules and
regulations of
6
any securities exchange or market upon which ADSs may be traded, listed or
quoted, or to conform with any usage with respect thereto, (iii) may be
necessary to indicate any special limitations or restrictions to which any
particular ADRs or ADSs are subject by reason of the date of issuance of the
Deposited Securities or otherwise, or (iv) 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 Holders or, in the case of Beneficial
Owners, on the ADR representing the ADSs owned by such Beneficial Owners.
Title. Subject to the limitations contained herein and in the ADR, title to an
ADR (and to each Certificated 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, in the case of a Certificated ADS, such ADR 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 an ADS (that is, the person in whose name an ADS is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under this Deposit Agreement or any ADR to any
holder or any beneficial owner unless such holder is the Holder registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner is the Holder registered on the books of the Depositary.
Book-Entry Systems. The Depositary shall make arrangements for the acceptance of
the ADSs into DTC. 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 number of ADSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate number 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
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.
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).
Deposit with Custodian. Subject to the terms and conditions of this Deposit
Agreement and applicable law, Shares or evidence of rights to receive Shares
(other than Restricted Securities) 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
7
closed, by Delivery of the Shares to the Custodian. 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, in a form satisfactory to the Custodian, (ii) in the case of
Shares represented by certificates in bearer form. 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 required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so 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 the ADR(s) for the number of ADSs 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, (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 and (F)
such certifications from prospective depositors and such opinions from counsel
to prospective depositors as may be determined by the Depositary and the Company
to be reasonably necessary to confirm that (i) such Shares are not Restricted
Securities (unless the provisions of Section 2.13 apply) and (ii) in the case of
deposits of Shares issued in respect of certain convertible notes issued by the
Company, that the depositor (x) acknowledges that the Shares have not been
listed for trading on the Indian Stock Exchanges and are not, for a period of 45
days following such deposit, eligible for withdrawal under the terms hereof and
(y) agrees to notify any subsequent purchaser of the restriction described in
(x) above. In any instance in which the Company is depositing Shares on behalf
of a prospective Holder in connection with deliveries of GDSs issued upon
conversion of convertible securities of the Company or otherwise, then the
certifications, evidence, orders, and other documents referred to in the
preceding sentence shall be provided by or on behalf of the prospective Holder
in the same manner as if the prospective Holder were the prospective depositor.
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 in Section 2.13) 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 Share 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
8
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 applicable governmental body in the Republic of India, if any. In
particular, and without limiting the generality of the foregoing, the Depositary
agrees to comply, and will cause the Custodian to comply, with the numerical
limitations and other applicable conditions set forth in the Operative
Guidelines for the Limited Two-way Fungibility of ADRs/GDRs under the "Issue of
Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository
Receipt Mechanism) Scheme, 1993" issued by the Reserve Bank of India. 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 furnished by the Company or any
such custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
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
in order for the prospective depositor to freely resell ADSs representing such
Shares or other Deposited Securities on the NYSE, unless a registration
statement is in effect under the Securities Act 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 of the
Company.
Issuance of ADSs. 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 by the Share
Registrar if registered Shares have been deposited or, if deposit is made by
book-entry transfer, confirmation of such transfer in the books of the Indian
Central Depository System, (iii) that all required documents have been received,
and (iv) the person(s) to whom or upon whose order ADSs are deliverable in
respect thereof and the number of ADSs to be so delivered. 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
9
this Deposit Agreement and applicable law, shall issue the ADSs 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 ADSs 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 ADSs (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 ADS(s).
The Depositary shall only issue ADSs in whole numbers and deliver; if
applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall
prohibit any Pre-Release Transaction upon the terms set forth in this Deposit
Agreement.
Transfer, Combination and Split-up of ADRs.
Transfer. The Registrar shall register the transfer of ADRs (and of the ADSs
represented thereby) on the books maintained for such purpose and the Depositary
shall (x) cancel such ADRs and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by the ADRs canceled by the Depositary, (y)
cause the Registrar to countersign such new ADRs and (z) Deliver such new ADRs
to or upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) the ADRs 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 ADRs 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 ADRs have been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable ADRs, of this Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
Combination & Split Up. The Registrar shall register the split-up or combination
of ADRs (and of the ADSs represented thereby) on the books maintained for such
purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for
the number of ADSs requested, but in the aggregate not exceeding the number of
ADSs evidenced by the ADRs cancelled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order
of the Holder thereof, if each of the following conditions has been satisfied:
(i) the ADRs 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 ADRs, of this Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
Co-Transfer Agents. The Depositary may appoint one or more co-transfer agents
for the purpose of effecting transfers, combinations and split-ups of ADRs 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 ADRs and will be entitled to protection and indemnity to the same extent as
the Depositary. Such co-transfer agents may be removed and substitutes appointed
by the Depositary. Each co-transfer
10
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 this Deposit Agreement.
Surrender of ADSs and Withdrawal of Deposited Securities. The Holder of ADSs
shall be entitled to Delivery (at the Custodian's designated office) of the
Deposited Securities at the time represented by the ADSs 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 ADRs evidencing such ADSs) for the purpose of withdrawal
of the Deposited Securities represented thereby, (ii) if so required by the
Depositary, the ADRs 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, (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, and (v) the Depositary has received, to the
extent deemed necessary and appropriate by the Company and the Depositary, a
certification and agreement from the Holder of the ADSs surrendered for
withdrawal that the Deposited Securities represented thereby were not acquired
upon conversion of any convertible notes issued by the Company less than 45 days
prior to the date of such surrender for withdrawal, subject, however, in each
case, to the further terms and conditions of the ADRs evidencing the surrendered
ADSs, of this Deposit Agreement, of the Company's Articles of Association and of
any applicable laws and the rules of the Indian Central Depository System, 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 (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered, and (iii) shall 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 this Deposited Securities,
or evidence of the electronic transfer thereof (if available), as the case may
be, to or upon the written order of the person(s) designated in the order
delivered to the Depositary for such purpose, subject however, in each case, to
the terms and conditions of this Deposit Agreement, of the ADRs evidencing the
ADSs so cancelled, of the Articles of Association of the Company, of any
applicable laws and of the rules of the Indian Central Depository System, and to
the terms and conditions of or governing the Deposited Securities, in each case
as in effect at the time thereof.
In the event the Deposited Securities include Shares that have not been
dematerialized and listed for trading on the Indian Stock Exchanges (i.e. on
account of a delay in such listing in connection with a deposit of Shares newly
issued by the Company in connection with a conversion of bonds or otherwise),
the Shares withdrawn hereunder will be selected first from the Shares that have
been dematerialized and listed for trading on the Indian Stock Exchanges and
thereafter from the Shares that have not been so dematerialized and listed.
11
Neither the Custodian, the Depositary nor the Company will have any liability to
any Holder or Beneficial Owner of ADSs who receives, upon cancellation of ADSs,
any Shares that have not been dematerialized and listed for trading on the
Indian Stock Exchanges.
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 ADSs 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 ADR or this Deposit
Agreement, the Depositary may make delivery at the Principal Office of (i) any
cash dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of securities 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. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
Limitations on Execution and Delivery, Transfer, etc. of ADRs; Suspension of
Delivery, Transfer, etc.
Additional Requirements. As a condition precedent to the execution and delivery,
registration of issuance, transfer, split-up, combination or surrender, of any
ADR, 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 an ADR 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 ADRs or ADSs
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 representative ADR, if applicable, this Deposit Agreement and applicable
law.
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
ADSs in particular instances may be refused, or the registration of transfers of
ADSs 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
12
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 representative ADR(s), if applicable,
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.
Regulatory Restrictions. Notwithstanding any provision of this Deposit Agreement
or any ADR(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 ADRs or to the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
Lost ADRs, etc. In case any ADR shall be mutilated, destroyed, lost, or stolen,
the Depositary shall execute and deliver a new ADR of like tenor at the expense
of the Holder (a) in the case of a mutilated ADR, in exchange of and
substitution for such mutilated ADR upon cancellation thereof, or (b) in the
case of a destroyed, lost or stolen ADR, in lieu of and in substitution for such
destroyed, lost, or stolen ADR, 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 ADR 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 ADR, the authenticity thereof and the
Holder's ownership thereof.
Cancellation and Destruction of Surrendered ADRs; Maintenance of Records. All
ADRs surrendered to the Depositary shall be canceled by the Depositary. Canceled
ADRs 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 ADRs so canceled, provided the Depositary maintains a
record of all destroyed ADRs. 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).
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) and,
13
if applicable, by issuing ADRs evidencing such ADRs with applicable notations
thereon ("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 ADSs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and 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 and ADSs to the same extent as Full
Entitlement ADRs and 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 ADRs) 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 1.2 Certificated/Uncertificated ADSs. Pursuant to Section 2.5 and
notwithstanding any other provision of this Deposit Agreement, the Depositary
may, at any time and from time to time, issue ADSs that are not evidenced by
physical certificated ADRs (such ADSs, the "Uncertificated ADS(s)" and the
ADS(s) evidenced by physical certificated ADR(s), the "Certificated ADS(s)).
When issuing and maintaining Uncertificated ADS(s) under this Deposit Agreement,
the Depositary shall at all times be subject to (i) the standards applicable to
registrars and transfer agents maintaining direct registration systems for
equity securities in New York and issuing uncertificated securities under New
York law, and (ii) the terms of New York law applicable to uncertificated equity
securities. Uncertificated ADSs shall not be represented by any instruments but
shall be evidenced by registration in the books of the Depositary maintained for
such purpose. Holders of Uncertificated ADSs, that are not subject to any
registered pledges, liens, restrictions or adverse claims of which the
Depositary has notice at such time, shall at all times have the right to
exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type and
class, subject in each case to applicable laws and any rules and regulations the
Depositary may have established in respect of the Uncertificated ADSs. Holders
of Certificated ADSs shall, if the Depositary maintains a direct registration
system for the ADSs, have the right to exchange the Certificated ADSs for
Uncertificated ADSs upon (i) the due surrender of the Certificated ADS(s) to the
Depositary for such purpose and (ii) the presentation of a written request to
that effect to the Depositary, subject in each case to (a) all liens and
restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse
claims of which the Depositary then has notice, (b) the terms of this Deposit
Agreement and the rules and regulations that the Depositary may establish for
such purposes hereunder, (c) applicable law, and (d) payment of the Depositary
fees and expenses applicable to such exchange of Certificated ADS(s) for
Uncertificated ADS(s). Uncertificated ADSs shall in all respects be identical to
Certificated ADS(s) of the same type and class, except that (i) no ADR(s) shall
be, or shall need to be, issued to evidence Uncertificated ADS(s), (ii)
Uncertificated ADS(s) shall, subject to the terms of this Deposit Agreement, be
transferable upon the same terms and conditions as uncertificated securities
14
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be
recorded on the books of the Depositary maintained for such purpose and evidence
of such ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement
existing rules and regulations, as may be deemed reasonably necessary to
maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such
rules and regulations do not conflict with the terms of this Deposit Agreement
and applicable law, and (b) the terms of such rules and regulations are readily
available to Holders upon request, (v) the Uncertificated ADS(s) shall not be
entitled to any benefits under this Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company unless such Uncertificated
ADS(s) is/are registered on the books of the Depositary maintained for such
purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii)
upon termination of this Deposit Agreement, the Depositary shall not require
Holders of Uncertificated ADSs to affirmatively instruct the Depositary before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of this Deposit
Agreement. When issuing ADSs under the terms of this Deposit Agreement,
including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3,
4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of this Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.12. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.12. Any references in this Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.12 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of this Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of this Deposit
Agreement (other than this Section 2.12) and (b) the terms of this Section 2.12,
the terms and conditions set forth in this Section 2.12 shall be controlling and
shall govern the rights and obligations of the parties to this Deposit Agreement
pertaining to the Uncertificated ADSs. Notwithstanding the foregoing, the
Depositary shall only issue Uncertificated ADSs representing Shares deposited
with the Custodian in accordance with Section 2.3 hereof.
Section 1.3 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 ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
15
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 insure 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 evidenced 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. 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 satisfactory to the Company and 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 set forth in
this Section 2.13 and except as 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 this Deposit Agreement. 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 2.13) and (b) the terms of (i) this
Section 2.13 or (ii) the applicable Restricted ADR, the terms and conditions set
forth in this Section 2.13 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.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares are
no longer Restricted Securities, the Depositary, upon receipt of (x) an opinion
of counsel satisfactory to the Company and the Depositary setting forth, inter
alia, that the Restricted ADRs, the Restricted ADSs and the Restricted Shares
are not as of such time Restricted Securities, and (y) instructions from the
Company to remove the restrictions applicable to the Restricted ADRs, the
Restricted ADSs and the Restricted Shares, shall (i) eliminate the distinctions
and separations between the applicable Restricted Shares held on deposit under
this Section 2.13 and the other Shares held on deposit under the terms of the
Deposit Agreement that are not Restricted Shares, (ii) treat the newly
unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the
other ADRs and ADSs issued and outstanding under the terms of the Deposit
16
Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all
actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.13 between the applicable Restricted
ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and
ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other
hand, including, without limitation, by making the newly-unrestricted ADSs
eligible for Pre-Release Transactions and for inclusion in the applicable
book-entry settlement systems.
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Proofs, Certificates and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder
and Beneficial Owner agrees, from time to time to provide to the Depositary and
the Custodian such proof of citizenship or residence, taxpayer status, payment
of all applicable taxes or other governmental charges, exchange control
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws, the terms of this Deposit Agreement or the
ADR(s) evidencing the ADSs 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
ADR(s). The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADR 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 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 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, transfer or 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.
Liability for Taxes and Other Charges. Any tax or other governmental charge
payable by the Custodian or by the Depositary with respect to any ADR or any
Deposited Securities or ADSs 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)
17
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 of ADSs,
register the 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 by such Holder and/or Beneficial
Owner.
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 are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.13), and (vi) the Shares presented for deposit have not been stripped
of any rights or entitlements. Such representations and warranties shall survive
the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. 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.
Compliance with Information Requests. Notwithstanding any other provision of
this Deposit Agreement or any ADR(s), each Holder and Beneficial Owner agrees to
comply with requests from the Company pursuant to applicable law, the rules and
requirements of the applicable Indian Stock Exchanges, and any other stock
exchange on which the Shares or ADSs are, or will be, registered, traded or
listed or the Articles of Association of the Company, which are made to provide
information, inter alia, as to 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. 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.
Ownership Restrictions. Notwithstanding any other provision in this Deposit
Agreement or any ADR, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the ADSs
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
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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 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 of the Company.
THE DEPOSITED SECURITIES
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 ADSs
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 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. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Distribution in Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or 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 ADSs held as of the ADS Record Date, additional ADSs, which represent in the
aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of this Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional 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 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
19
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 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 the relevant Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders (and no registration statement
relating thereto has been declared effective under the Securities Act), 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 (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.
Elective Distributions in Cash or Shares. Whenever the Company intends to make a
distribution payable at the election of the holders of Shares in cash or in
additional Shares, the Company shall give timely notice thereof to the
Depositary prior to the proposed distribution stating whether or not it wishes
such elective distribution to be made available to Holders of ADSs. Upon timely
receipt of notice indicating that the Company wishes such elective distribution
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
elective distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the Company
shall have timely requested that the elective distribution be made available to
Holders, (ii) the Depositary shall have determined that such distribution is
reasonably practicable and (iii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in the Republic
of India in respect of the Shares for which no election is made, either (X) cash
upon the terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed distribution in cash or in additional ADSs.
The Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed distribution (X) in
cash, the distribution shall be made upon the terms described in Section 4.1, or
(Y) in ADSs, the distribution shall be made upon the terms described in Section
4.2. Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
20
Distribution of Rights to Purchase Additional ADSs.
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 timely notice thereof to the Depositary 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).
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 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 practicable. 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) to the Holders (or, in the case that
the rights have been made available to the Holders and have been exercised by
some but not all of the Holders, to the Holders that have not exercised such
rights) upon the terms set forth in Section 4.1.
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, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
21
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case 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.
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.
Distributions Other Than Cash, Shares or Rights to Purchase Shares.
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.
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 establish an ADS
Record Date (upon the terms described in Section 4.9) and 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
22
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 (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 establish an ADS Record
Date (upon the terms described in Section 4.9) and (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 the Holders in any way it deems reasonably
practicable under the circumstances and shall establish an ADS Record Date (upon
the terms described in Section 4.9) and (i) cause the proceeds, if any, from
such disposition 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.
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 ADSs 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.
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 thirty (30) days prior to the intended date
of redemption which notice shall set forth the particulars of the proposed
redemption. Upon timely 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
23
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, if applicable, upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 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 dollar equivalent of the per share amount received by the
Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the
redemption of the Deposited Securities represented by ADSs (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.
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 practicable or lawful, or
if any approval or license of any governmental authority or agency thereof that
is required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (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.
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
24
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 (the "ADS Record Date") for
the determination of the Holders of ADRs 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 provisions of Section 4.1 through 4.8 and to the other terms and
conditions of this Deposit Agreement, only the Holders of ADSs 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.
Voting of Deposited Securities. 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 in accordance with Section 4.9. 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 twenty-one (21) 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 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, and (c) a brief statement as to the manner in which such
voting instructions may be given, including, without limitation, statements that
(x) a discretionary proxy may be given by the Depositary to a person designated
by the Company in respect of ADSs for which no voting instructions have been
timely received, and (y) the deadline by which the Depositary will require
voting instructions to be delivered to it. The Company has informed the
Depositary that under Indian practice, as in effect as of the date of the
Deposit Agreement, proxies are generally required to be submitted to the Company
at least forty-eight (48) hours prior to the date of the shareholders' meeting
(as a result of which the deadline for submission of voting instructions by
Holders of ADSs to the Depositary may need to be established as early as five
(5) business days before the date of the meeting). Voting instructions may be
25
given only in respect of a number of ADSs representing an integral number of
Deposited Securities. The Depositary shall endeavor, insofar as practicable and
permitted under applicable law and Indian practice, the provisions of this
Deposit Agreement, the Articles of Association of the Company and the provisions
of the Deposited Securities, to vote, or cause the Custodian to vote, (in person
or by proxy) (i) the Deposited Securities represented by ADSs in respect of
which timely and valid voting instructions have been received from ADS Holders
in accordance with such voting instructions and (ii) the Deposited Securities in
respect of which no voting instructions have been received from ADS holders in
accordance with the deemed instructions in the next succeeding paragraph, and in
all cases at the time and place of the commencement of the period during which
proxies in respect of such vote or meeting may be submitted as set forth in the
notice of meeting or solicitation of consent or proxy relating thereto, which
will generally be forty-eight (48) hours prior to the time of such vote or
meeting.
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, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. 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
voting instructions. If the Depositary (x) shall have timely received from the
Company the notice of meeting and shall, at the timely request of the Company,
have distributed the information contemplated in the preceding paragraph and (y)
does not receive instructions from a Holder on or before the date established by
the Depositary for such purpose, the Holder shall be deemed to have instructed
the Depositary to give a discretionary proxy to a person designated by the
Company to vote, provided that no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary that: (i)
the Company does not wish such proxy given or (ii) substantial opposition exists
or (iii) the rights of holders of ADSs will be adversely affected.
Notwithstanding anything else contained herein, the Depositary shall, if so
requested in writing by the Company, represent all Deposited Securities (whether
or not voting instructions have been received in respect of such Deposited
Securities from Holders as of the ADS Record Date) for the sole purpose of
establishing quorum at a meeting of shareholders.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, 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.
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,
26
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under this Deposit Agreement, and the ADRs shall,
subject to the provisions of this 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 an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional ADRs as in the case of a stock dividend on the Shares, or call for
the surrender of outstanding ADRs to be exchanged for new ADRs, in either case,
as well as in the event of newly deposited Shares, with necessary modifications
to the form of ADR 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 ADRs. 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 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.
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.
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 Shares
or other securities of the same class as those constituting 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.
List of Holders. Promptly upon written request by the Company, the Depositary
shall furnish to the Company a list, as of a recent date, of the names,
addresses and holdings of ADSs of all Holders.
27
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 ADSs
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 (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable. Neither the Depositary nor the Custodian shall be
liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such 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
ADSs, 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.
28
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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 ADRs, and the surrender
of ADSs 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 ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADSs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADSs 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 ADRs.
The Registrar may close the transfer books with respect to the ADSs, 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 ADSs 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 ADRs and
transfers, combinations and split-ups, and to countersign the ADRs evidencing
such ADSs (if applicable) 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.
29
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 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, acts of terrorism, 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 of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in 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 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 ADSs, 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.
Standard of Care. The Company and the Depositary assume no obligation and shall
not be subject to any liability under this Deposit Agreement or any ADRs to any
Holder(s) or Beneficial Owner(s), except that the Company and the Depositary
agree to perform their respective obligations specifically set forth in this
Deposit Agreement or the applicable ADRs 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 ADSs,
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).
30
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.
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 90th 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 later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor Depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADRs and such other information relating to ADRs 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.
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
31
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 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 ADRs, 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.
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 securities of the same class as those constituting 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 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 securities
of the same class as those constituting Deposited Securities and (b) the
English-language versions of the Company's annual reports prepared in accordance
with the applicable requirements of the Commission. The Depositary shall
promptly 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 securities of the same class as those constituting 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
32
Company's Articles of Association along with the provisions of or governing the
Shares and any other Deposited Securities issued by the Company in connection
with such Shares, and promptly upon any amendment thereto or change therein, the
Company shall deliver to the Depositary and the Custodian a copy of such
amendment thereto or change therein. The Depositary may rely upon such copy for
all purposes of 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 ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
33
Issuance of Additional Shares, ADSs etc. The Company agrees that in the event it
or any of its Affiliates proposes (i) an offering to holders of outstanding
Shares or other securities of the same class as those constituting Deposited
Securities of rights to subscribe for Shares or other securities of the same
class as those constituting Deposited Securities, (ii) an elective dividend of
cash or Shares in respect of the Deposited Securities, (iii) a redemption of
Deposited Securities, (iv) 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 (v) 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 proposed transaction 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 and the securities laws of the states of the
U.S.). 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 such transaction (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 Indian
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 enable it to
proceed without registration under 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 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 the related
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 order to offer any securities to Holders and
Beneficial Owners.
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
34
or its agents 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 ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the ADRs, 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,
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 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.
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 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
35
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.
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, 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, to the extent
permitted by Indian law, and subject to the further terms and provisions of this
Section 5.10, (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,
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 the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Restricted Securities Owners. The Company agrees to advise the Depositary in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that are ineligible for deposit hereunder (except
under the circumstances contemplated in Section 2.13) and, to the extent
36
practicable, shall require each person to whom or which the Company issues
Restricted Securities after the date hereof to represent in writing that such
person or entity will not deposit Restricted Securities hereunder (except under
the circumstances contemplated in Section 2.13).
AMENDMENT AND TERMINATION
Amendment/Supplement. Subject to the terms and conditions of this Section 6.1
and applicable law, the ADRs outstanding at any time, the provisions of this
Deposit Agreement and the form of ADR 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 ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADRs. 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 settle 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 or beneficially own such ADSs, to consent and agree to such
amendment or supplement and to be bound by this Deposit Agreement and the ADR,
if applicable, as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such ADSs
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 of, or supplement to, the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and any ADRs at any time in accordance with
such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement and any ADRs 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.
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 ADRs then outstanding at least thirty (30)
days prior to the date fixed in such notice for such termination. If (i) thirty
(30) days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) ninety (90) days
shall have expired after 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 ADRs then outstanding
at least thirty (30) days prior to the date fixed for such termination. On and
after the date of termination of this Deposit Agreement, the Holder of an ADS
37
will, upon surrender of such ADS at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of ADSs 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 ADS. If any ADSs shall remain outstanding after
the date of termination of this Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of ADSs, 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 ADSs 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 an
ADS, 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 ADSs 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 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 ADSs, 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. The obligations of the
Depositary under Sections 5.8 and 7.6 hereof shall survive the termination of
this Agreement.
MISCELLANEOUS
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.
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
38
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 Deposit 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.
Severability. In case any one or more of the provisions contained in this
Deposit Agreement or in the ADRs 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.
Holders and Beneficial Owners as Parties; Binding Effect. The Holders and
Beneficial Owners from time to time of ADSs shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
any ADR by acceptance thereof or any beneficial interest therein.
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 Bombay House, 24 Home Xxxx Street,
Bombay, 400 001, Republic of India, Attention: Company Secretary, 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 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts Department, or to
any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail 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.
39
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the 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.
Governing Law and Jurisdiction. This Deposit Agreement and the ADRs 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 ADR 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 Tata Incorporated. (the "Agent")
now at 0 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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.
40
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 ADR 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.
Assignment. Subject to the provisions of Section 5.4 hereof, this Deposit
Agreement may not be assigned by either the Company or the Depositary.
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.
Indian Law References. Any summary of the laws of the Republic of India and
regulations and of the terms of the Company's Articles of Association set forth
in this Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
41
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of this Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of this Deposit Agreement to
update any such summaries.
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
this 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.
Section 1.4 Amendment and Restatement. The Depositary shall arrange to
have ADRs printed that reflect the form of ADR attached to this Deposit
Agreement. All ADRs issued hereunder after the date hereof, 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. International GDRs issued prior
to the date hereof under the terms of the International Deposit Agreement and
outstanding as of the date hereof, which do not reflect the form of ADR attached
hereto as Exhibit A, shall, from and after the date hereof, be treated as ADRs
issued hereunder and shall, from and after the date hereof, be subject to the
terms hereof in all respects. Such outstanding International GDRs may, at the
option of the holder, be exchanged for ADRs in the form contemplated hereby, but
such outstanding International GDRs do not need to be called in for exchange.
The Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
The Company hereby instructs the Depositary to (i) promptly send notice of
the execution of this Deposit Agreement to all holders of International GDRs
outstanding under the International Deposit Agreement as of the date hereof and
(ii) inform holders of International GDRs outstanding under the International
Deposit Agreement as of the date hereof that they have the opportunity, but are
not required, to exchange their International GDRs for one or more ADR(s) issued
pursuant to this Deposit Agreement.
The securities, property and cash delivered to the Custodian in respect of
International GDS outstanding as of the date hereof under the International
Deposit Agreement and defined as "Deposited Securities" thereunder, shall, for
all purposes from and after the date hereof, be considered to be, and treated
as, Deposited Securities hereunder in all respects.
Holders and Beneficial Owners of International GDSs issued pursuant to the
International Deposit Agreement and outstanding as of the date hereof, shall,
from and after the date hereof, be deemed Holders and Beneficial Owners of ADSs
issued pursuant to this Deposit Agreement and shall be subject to all of the
terms and conditions of this Deposit Agreement in all respects; provided,
however, that any term of this Deposit Agreement that prejudices any substantial
42
existing right of holders or beneficial owners of International GDSs issued
under the International Deposit Agreement shall not become effective as to
Holders and Beneficial Owners until thirty (30) days after notice of the
amendments effectuated by this Deposit Agreement shall have been given to
holders of ADRs outstanding as of the date hereof.
The Rule 144A Deposit Agreement, the Rule 144A GDSs and the Rule 144A GDRs
are not affected by this amendment and restatement of the International Deposit
Agreement and the terms hereof do not apply thereto. The Company hereby notifies
the Depositary, and the Depositary hereby acknowledges, that the Shares
represented by the Rule 144A GDSs may be Restricted Securities.
43
IN WITNESS WHEREOF, TATA MOTORS 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 ADSs evidenced by ADRs issued in accordance with the terms hereof, or
upon acquisition of any beneficial interest therein.
TATA MOTORS LIMITED
By: /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title:
CITIBANK, N.A.
By:
-----------------------------------
Name:
Title:
IN WITNESS WHEREOF, TATA MOTORS 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 ADSs evidenced by ADRs issued in accordance with the terms hereof, or
upon acquisition of any beneficial interest therein.
TATA MOTORS LIMITED
By:
-----------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF ADR]
Number _________ CUSIP NUMBER: 876568 50 2
American Depositary Shares (each
American Depositary Share
representing one (1) fully paid
Ordinary Share, par value Rs.10 per
share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED COMMON SHARES
of
TATA MOTORS LIMITED
(Incorporated 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 common shares, par value Rs.10 per share, including
evidence of rights to receive such common shares (the "Shares"), of Tata Motors
Limited, a corporation incorporated 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 (1) Shares 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 ADS(s)-to-Share(s) ratio is
subject to amendment as provided in Articles IV and VI of the Deposit Agreement.
The Depositary's Principal Office is located at 000 Xxxxxxxxx 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 ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Amended and Restated Deposit
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Agreement, dated as of September 27, 2004 (as amended and supplemented 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 ADSs evidenced by ADRs
issued thereunder. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of ADRs 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. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement and applicable ADR(s), 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 the Deposit Agreement and
the applicable ADR(s), 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 the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the 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) Withdrawal of Deposited Securities. The Holder of this ADR and the
ADSs represented hereby shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs 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 ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if so required by the Depositary, the ADRs 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, (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 of the
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Deposit Agreement) have been paid, and (v) the Depositary has received, to the
extent deemed necessary and appropriate by the Company and the Depositary, a
certification and agreement from the Holder of the ADSs surrendered for
withdrawal that the Deposited Securities represented thereby were not acquired
upon conversion of any convertible notes issued by the Company less than 45 days
prior to the date of such surrender for withdrawal, subject, however, in each
case, to the further terms and conditions of this ADR, of the Deposit Agreement,
of the Company's Articles of Association and of any applicable laws and the
rules of the Indian Central Depository System, 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 (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered, and (iii) shall 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, 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 ADR, of the Articles of
Association of the Company, of any applicable laws and of the rules of the
Indian Central Depository System, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
In the event the Deposited Securities include Shares that have not been
dematerialized and listed for trading on the Indian Stock Exchanges (i.e. on
account of a delay in such listing in connection with a deposit of Shares newly
issued by the Company in connection with a conversion of bonds or otherwise),
the Shares withdrawn under the terms of the Deposit Agreement will be selected
first from the Shares that have been dematerialized and listed for trading on
the Indian Stock Exchanges and thereafter from the Shares that have not been so
dematerialized and listed. Neither the Custodian, the Depositary nor the Company
will have any liability to any Holder or Beneficial Owner of ADSs who receives,
upon cancellation of ADSs, any Shares that have not been dematerialized and
listed for trading on the Indian Stock Exchanges.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of 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 ADSs 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 ADR 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 securities 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
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any Holder so surrendering ADSs represented by this ADR, 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.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order
of the person entitled thereto, if each of the following conditions has been
satisfied: (i) this ADR 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 ADR has been properly
endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this ADR has been duly stamped (if required by the laws of the State of
New York or of the United States), and (iv) all applicable fees and charges of,
and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this ADR, 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 ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled by the Depositary), (y) cause the Registrar to
countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of
the Holder thereof, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and government charges (as are set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this ADR, 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, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, 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 an ADR 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 ADR, (ii) the
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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 ADRs or ADSs 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 this ADR and 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 ADSs in particular
instances may be refused, or the registration of transfer of ADSs 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 on
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24) hereof. Notwithstanding any
provision of the Deposit Agreement or this ADR 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 ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable law, the rules and requirements of the applicable Indian
Stock Exchanges, and any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to 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 ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs 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
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ADSs, 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 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 of the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs 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 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 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
of ADSs, register the split-up or combination of ADRs and (subject to paragraph
(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 hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained by 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 (v) the Shares presented for deposit are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.13 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. 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, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
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the Deposit Agreement or this ADR evidencing ADS 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 of Shares on the books of
the Company or the Shares 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 the Deposit Agreement
and this ADR. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADR or the distribution
or sale of any dividend or distribution of rights or of the proceeds thereof or,
to the extent not limited by paragraph (24) 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
information and documentation are provided, in each case to the Depositary's,
the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or 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 (v) below);
(ii) Cancellation Fee: 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) Dividend Fee: No Fee shall be payable upon distribution of (a)
cash dividends or (b) ADSs pursuant to stock dividends (or
other free distributions of stock) so long as the charging of
such fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of ADS
distributions pursuant to stock dividends (or other free
distributions of stock) and the fees specified in (iv) below
shall be payable in respect of distributions of cash;
(iv) Cash Distribution Fee: 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 proceeds (i.e., upon the sale of
rights and other entitlements);
(v) Rights Exercise Fee: 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 exercise of rights to purchase additional ADSs;
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(vi) Other Distribution Fee: to any Holder of ADRs receiving a
distribution of securities other than ADSs or rights to
purchase additional ADSs, a fee not in excess of U.S. $5.00
per unit of 100 securities (or fraction thereof) distributed;
(vii) Annual Depositary Services Fee: to any Holder of ADRs, a fee
not in excess of U.S. $2.00 per 100 ADSs (or fraction thereof)
held on the last day of each calendar year, except to the
extent of any cash dividend fee(s) charged under paragraph
(iii) above during that calendar year.
In addition, Holders, Beneficial Owners, persons depositing Shares 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, the
Custodian or any nominee in connection with the delivery or
servicing 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 paragraph (22) of this ADR. 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.
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(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that the ADR 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 ADR (that is,
the person in whose name this ADR is registered on the books of the Depositary)
as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the
Deposit Agreement or this ADR to any holder of this ADR or any beneficial owner
unless such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a beneficial owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (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 ADR 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 ADRs. ADRs 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 ADR 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 ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs 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 ADRs.
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The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24) hereof.
Dated: _______________, 2004
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: __________________________________ By: _________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF ADR]
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 (upon the terms of the
Deposit Agreement), 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 (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute
promptly the amount thus received (net of (a) 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 ADSs
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 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. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
If any distribution upon any Deposited Securities consists of a dividend
in, or 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, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
as described in Section 4.9 of the Deposit Agreement 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
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional 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
A-11
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 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 the relevant Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no registration statement relating thereto has been declared effective
under the Securities Act), 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 (a) taxes and (b) fees and
charges of, and the 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 of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS Record Date according to paragraph (16) and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the case
of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall, to the extent permitted by law, distribute to Holders, on
the basis of the same determination as is made in India in respect of the Shares
for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
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, 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
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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 and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than 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 it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of 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 or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale or exercise, or (iii) the content of any materials forwarded to
the ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of 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
A-13
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 exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein or in the Deposit Agreement shall obligate the Company to file
any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of 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 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 hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(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 a satisfactory opinion of counsel, 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. 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, 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 the
per share amount received by the Depositary (adjusted to reflect the
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ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (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 ADRs 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. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADSs 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. 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 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 twenty-one (21) 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 the Deposit Agreement, the
Company's Articles 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 and (c) a brief statement as to the manner in which such voting
instructions may be given, including, without limitation, statements that (x) a
discretionary proxy may be given by the Depositary to a person designated by the
Company in respect of ADSs for which no voting instructions have been timely
received, and (y) the deadline by which the Depositary will require voting
instructions to be delivered to it. The Company has informed the Depositary that
under Indian practice, as in effect as of the date of the Deposit Agreement,
A-15
proxies are generally required to be submitted to the Company at least
forty-eight (48) hours prior to the date of the shareholders' meeting (as a
result of which the deadline for submission of voting instructions by Holders of
ADSs to the Depositary may need to be established as early as five (5) business
days before the date of the meeting). Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. The Depositary shall endeavor, insofar as practicable and permitted
under applicable law and Indian practice, the provisions of the Deposit
Agreement, the Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, (in person or by
proxy) (i) the Deposited Securities represented by ADSs in respect of which
timely and valid voting instructions have been received from ADS Holders in
accordance with such instructions, and (ii) the Deposited Securities in respect
of which no voting instructions have been received from ADS holders in
accordance with the deemed instructions in the next succeeding paragraph, and in
all cases at the time and place of the commencement of the period during which
proxies in respect of such vote or meeting may be submitted as set forth in the
notice of meeting or solicitation of consent or proxy relating thereto, which
will generally be forty-eight (48) hours prior to the time of such vote or
meeting.
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 the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. 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
voting instructions. If the Depositary (x) shall have timely received from the
Company the notice of meeting and shall, at the timely request of the Company,
have distributed the information contemplated in the preceding paragraph and (y)
does not receive instructions from a Holder on or before the date established by
the Depositary for such purpose, the Holder shall be deemed to have instructed
the Depositary to give a discretionary proxy to a person designated by the
Company to vote, provided that no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary that: (i)
the Company does not wish such proxy given or (ii) substantial opposition exists
or (iii) the rights of holders of ADSs will be adversely affected.
Notwithstanding anything else contained herein, the Depositary shall, if so
requested in writing by the Company, represent all Deposited Securities (whether
or not voting instructions have been received in respect of such Deposited
Securities from Holders as of the ADS Record Date) for the sole purpose of
establishing quorum at a meeting of shareholders. Notwithstanding anything else
contained in the Deposit Agreement or this ADR, 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.
A-16
(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 ADRs 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 an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional ADRs as in the case of a stock dividend on the Shares, or call for
the surrender of outstanding ADRs to be exchanged for new ADRs, in either case,
as well as in the event of newly deposited Shares, with necessary modifications
to the form of ADR 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 an
opinion of Company's counsel 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 of 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 delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, 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 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, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in 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 the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
A-17
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs or (v) for any
consequential or punitive damages for any breach of the terms of the 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 ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR 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 the Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement 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 90th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
upon the appointment 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 removal shall
be effective on the earlier of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) the appointment
by the Company 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 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
A-18
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 an contemplated in Sections 5.8 and 5.9 of 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 Sections 5.8 and 5.9 of 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 ADRs and such other information relating to ADRs 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.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22, the Deposit Agreement and applicable law, this ADR and any
provisions of 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 ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADRs. 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 or
beneficially own such ADSs, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement and this ADR as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADSs 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 of, or
A-19
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and any ADRs 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 ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If (i)
thirty (30) days shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) ninety (90) days
shall have expired after 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 herein and in the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by providing notice of such termination to the Holders of all
ADRs then outstanding at least thirty (30) days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder of an ADS will, upon surrender of such ADSs at the Principal Office of
the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in paragraph (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 ADR. If any ADSs shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADSs, 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 ADSs
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 an ADS, 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 ADSs 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 ADSs, 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 an ADSs, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
A-20
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 ADR 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 Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf, 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, to the extent
permitted by Indian law, and subject to the further terms and provisions of this
Section (25), (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) 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).
A-21
(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 ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR 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
ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' common of Tata Motors Limited and as such do
not entitle the holders thereof to the same per-share entitlement as other
common Shares (which are 'full entitlement' common Shares) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the common Shares
represented by such ADSs become 'full entitlement' common Shares."]
A-22
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 U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding issuances fraction thereof) issued. receiving ADSs.
contemplated by paragraphs (3)(b) and
(5) below).
--------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender of ADSs. fraction thereof) surrendered. purpose of withdrawal of Deposited
Securities or person to whom
Deposited Securities are delivered.
--------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee, to the extent prohibited by Person to whom distribution is made.
dividends or (b) ADSs pursuant to the exchange upon which the ADSs
stock dividends (or other free are listed. If the charging of
distribution of stock). such fee is not prohibited, the
fees specified in (1) above shall
be payable in respect of a
distribution of ADSs pursuant to
stock dividends (or other free
distribution of stock) and the fees
specified in (4) below shall be
payable in respect of distributions
of cash.
--------------------------------------------------------------------------------------------------------------------
(4) Distribution of cash proceeds Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., upon sale of rights and other fraction thereof) held.
entitlements).
--------------------------------------------------------------------------------------------------------------------
B-1
--------------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per unit of 100 Person to whom distribution is made.
other than ADSs or rights to purchase securities (or fraction thereof)
additional ADSs (i.e., spin-off distributed.
shares).
--------------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $2.00 per 100 ADSs (or Person holding ADSs on last day of
fraction thereof) held as of the calendar year.
last day of each calendar year,
except to the extent of any cash
dividend fee(s) charged under
paragraph (3)(a) above during the
applicable calendar year.
--------------------------------------------------------------------------------------------------------------------
(7) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to exercise of rights to purchase fraction thereof) issued.
additional ADSs.
--------------------------------------------------------------------------------------------------------------------
II. Charges
(i) 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:
(ii) taxes (including applicable interest and penalties) and other governmental
charges;
(iii) 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;
(iv) 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;
(v) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(vi) 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
(vii) the fees and expenses incurred by the Depositary, the Custodian or any
nominee in connection with the servicing or delivery of Deposited
Securities.
B-2
