Exhibit 1.1
INFOSYS TECHNOLOGIES LIMITED
[6,000,000] AMERICAN DEPOSITARY SHARES
REPRESENTING
[3,000,000] EQUITY SHARES
(PAR VALUE RS.5 PER SHARE)
UNDERWRITING AGREEMENT
___________, 2003
Xxxxxxx Xxxxx (Asia) L.L.C.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
named in Schedule II hereto,
c/o Goldman Sachs (Asia) L.L.C.
68th Floor
Xxxxxx Kong Centre
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Ladies and Gentlemen:
The shareholders named in Schedule I hereto (the "Selling Shareholders")
of Infosys Technologies Limited (the "Company"), a public limited company
incorporated under the laws of the Republic of India ("India"), propose, subject
to the terms and conditions stated herein, to sell to the Underwriters named in
Schedule II hereto (the "Underwriters") for whom the Representatives (as
hereinafter defined) are acting as representatives, an aggregate of _________
American Depositary Shares representing __________ equity shares, par value Rs.5
per share (the "Equity Shares"), of the Company and, at the election of the
Underwriters, up to __________ additional American Depositary Shares
representing ___________ additional Equity Shares. The aggregate of ____________
American Depositary Shares representing _____________ Equity Shares to be sold
by the Selling Shareholders are herein called the "Firm ADSs" and the aggregate
of ____________ [15%] additional American Depositary Shares representing
____________ additional Equity Shares to be sold by certain of the Selling
Shareholders at the election of the Underwriters are herein called the "Optional
ADSs". The Firm ADSs and the Optional ADSs that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the "ADSs".
The Equity Shares represented by the Firm ADSs are hereinafter called the "Firm
Shares" and the Equity Shares represented by the Optional ADSs are hereinafter
called the
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"Optional Shares". The Firm Shares and the Optional Shares are herein
collectively called the "Shares".
The Company has caused to be prepared and/or delivered to all holders of
the Company's Equity Shares an Invitation to Offer, dated May [__], 2003
containing a description of the terms upon which the Company is sponsoring a
purchase offer for the Equity Shares to be subsequently resold as ADSs in this
offering, pursuant to (i) the FEMA Notification No. 41/2001, dated March 2, 2001
issued by the Reserve Bank of India, (ii) the Notification No. 15/23/99-NRI
dated July 29, 2002 issued by Government of India, Ministry of Finance, (iii)
the `Operative Guidelines for Disinvestment of shares by the Indian Companies in
the overseas market through issue of ADRs/GDRs' as notified by the Government of
India, Ministry of Finance vide Notification No. 15/23/99-NRI dated July 29,
2002 and (iv) the Issue of Foreign Currency Convertible Bonds and Ordinary
Shares (Through Depository Receipt Mechanism) Scheme, 1993 as amended by the
Issue of Foreign Currency Convertible Bonds and Ordinary Shares (Through
Depository Receipt Mechanism) (Amendment) Scheme - II, 2002 (collectively the
"Notifications"). Under the terms of the Invitation to Offer and the other
Indian Purchase Offer Documents (as defined in Section 1(a)(vii) below) the
Shares to be sold by the Selling Shareholders hereunder are being held by the
Escrow Agent (as defined in Section 1(a)(vii) below) until such time as they are
required to be transferred to the Indian Domestic Custodian acting on behalf of
the Depositary (each as defined in the following paragraph) against the issuance
of ADSs representing such Shares and to be delivered to the Underwriters under
Section 4 hereof.
The ADSs are to be issued pursuant to a deposit agreement, dated as of
March 10, 1999, among the Company, Deutsche Bank Trust Company Americas, as
depositary (the "Depositary"), and holders and beneficial owners from time to
time of the American Depositary Receipts (the "ADRs") issued by the Depositary
and evidencing the ADSs, and as amended on March 28, 2003 (the "Deposit
Agreement"). Pursuant to the Deposit Agreement, ICICI Bank Limited has been
appointed the domestic custodian in India (the "Indian Domestic Custodian") to
hold Equity Shares on behalf of the Depositary. Each ADS will initially
represent the right to receive 1/2 of an Equity Share deposited pursuant to the
Deposit Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) The Company meets the requirements for use of Form F-3 under the
United States Securities Act of 1933, as amended (the "Act") and has
prepared and filed a registration statement on Form F-3 (File No.
333-102726) in respect of the offering and sale of the Shares and
the ADSs (the "Offering") with the United States Securities and
Exchange Commission (the "Commission"); such registration statement
and any post-effective amendment thereto, each in the form
heretofore delivered to Xxxxxxx Sachs (Asia) L.L.C., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Citigroup Global Markets
Inc., on behalf of the Underwriters (the "Representatives"), and,
excluding exhibits thereto but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the
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Offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Act, which became effective upon filing, no
other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed
with the Commission; and no stop order suspending the effectiveness
of such registration statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act
is hereinafter called a "Preliminary Prospectus"); the various parts
of such registration statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including (i)
the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the registration statement at the time it was
declared effective and (ii) the documents incorporated by reference
in the prospectus contained in the registration statement at the
time such registration statement became effective, each as amended
at the time such part of the registration statement became
effective, or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under
the Act is hereinafter called the "Prospectus"; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 under the Act, as
of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the United
States Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus
or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date
of the initial registration statement that is incorporated by
reference in the Registration Statement;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and each Preliminary
Prospectus did not contain an untrue statement or a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
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(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and the Registration Statement, the
Prospectus, the Invitation to Offer and the Letter of Transmittal
did not, as of the applicable effective date of the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
and on each Time of Delivery as to the Prospectus, and as of with
respect to the Invitation to Offer and the Letter of Transmittal the
date on which it was transmitted to the Company's holders of Equity
Shares, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein;
(v) A registration statement on Form F-6 (File No. 333-72199), as
amended on March 28, 2003, in respect of the ADSs has been filed
with the Commission; such registration statement in the form
heretofore delivered to the Representatives and, excluding exhibits,
to the Representatives for each of the other Underwriters, has been
declared effective by the Commission in such form; no other document
with respect to such registration statement has heretofore been
filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (the various parts of such registration statement,
including all exhibits thereto, each as amended at the time such
part of the registration statement became effective, being
hereinafter collectively called the "ADS Registration Statement");
and the ADS Registration Statement when it became effective
conformed, and any further amendments thereto will conform, in all
material respects to the requirements
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of the Act and the rules and regulations of the Commission
thereunder, and did not, as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vi) Neither the Company nor any of its subsidiaries or affiliates
has distributed, nor will it distribute prior to the later of the
Second Time of Delivery (as defined below) and the completion of the
Underwriters' distribution of the ADSs, any offering material in
connection with the Offering (a) in the U.S. other than a
Preliminary Prospectus, the Prospectus, the Registration Statement
or the ADS Registration Statement and (b) in India other than the
Indian Purchase Offer Documents, the Notice of Extraordinary General
Meeting, dated January 27, 2003, the Notice of Annual General
Meeting, dated May [__], 2003, and the Annual Report of the Company,
dated May [__], 2003, distributed to shareholders in connection with
such Annual General Meeting; neither the Company nor any of its
subsidiaries or affiliates has distributed, or authorized the
distribution of, any documents, information or materials concerning
or with respect to the Indian Purchase Offer other than the Indian
Purchase Offer Documents;
(vii) Prior to the execution of this Agreement,
(A) The Company has caused to be prepared and/or delivered to
all holders of the Company's Equity Shares (i) an invitation to
offer, dated May [__], 2003 (the "Invitation to Offer")
containing a description of the terms upon which the Company is
sponsoring an ADS facility for its Equity Shares (the "Indian
Purchase Offer") through Karvy Consultants, the Company's
registrar and transfer agent (the "R&T Agent") with whom the
Company has executed an agency agreement, dated [___________,
200_] (the "R&T Agent Agreement") and (ii) a letter of
transmittal, dated May [__], 2003 (the "Letter of Transmittal")
which includes a power of attorney whereby each Selling
Shareholder that is participating in the Indian Purchase Offer
appoints ICICI Bank Ltd. as its attorney-in-fact and custodian
(the "Attorney-in-Fact") in connection with the Indian Purchase
Offer and the subsequent resale of its Shares in the form of ADSs
in the Offering (the "Power of Attorney");
(B) The Company and the R&T Agent have executed an escrow
agreement, dated May [__], 2003 (such escrow agreement, together
with the second escrow agreement to be entered into between the
Escrow Agent, the Depositary and the Indian Domestic Custodian
pursuant to Section 1(E)(n) thereof, being defined herein as the
"Escrow Agreement") with ICICI Bank Ltd. as custodian and escrow
agent (the "Escrow Agent") whereby as the Attorney-in-Fact to the
Selling Shareholders the Escrow Agent will (i) enter into this
Agreement and execute such further deeds or documents on behalf
of each of the Selling Shareholders as may be required in
connection with the Indian Purchase Offer and the Offering, (ii)
hold the Equity Shares for transmission of the same to the Indian
Domestic Custodian acting on behalf of the Depositary prior to
the issuance of the ADSs pursuant to the terms of the Deposit
Agreement, (iii) receive the consideration payable to the Selling
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Shareholders upon the Closing of the Offering and (iv) distribute
the consideration to the Selling Shareholders in accordance with
the terms and conditions of this Agreement and the Indian
Purchase Offer Documents (as defined below); and
(C) The Invitation to Offer, the Letter of Transmittal
(together with the Power of Attorney), the Escrow Agreement and
the R&T Agent Agreement, in each case, including all exhibits or
attachment to such documents, shall be referred to herein as the
"Indian Purchase Offer Documents");
(viii) The Company has not sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the
Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt of the
Company or any material adverse change in or any development that
could reasonably be expected to affect the general affairs,
management, financial position, prospects, shareholders' equity or
results of operations of the Company, otherwise than as set forth in
the Prospectus;
(ix) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property
owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company; and any real property and
buildings held under lease by the Company are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company; and no
material default (or event which with notice or lapse of time, or
both, would constitute such a default) by the Company has occurred
and is continuing under any such leases;
(x) The Company does not have any "significant subsidiaries" as that
term is defined in Rule 1-02(w) of Regulation S-X under the Act;
(xi) Since the date of the last financial statements included in the
Prospectus, the Company has not (i) entered into or assumed any
material contract, (ii) incurred any material liability (including
contingent liability) or other obligation, (iii) acquired or
disposed of or agreed to acquire or dispose of any material business
or asset, (iv) paid any dividends (other than the April 10, 2003
proposed declaration of an annual dividend of Rs. 14.50 per Equity
Share, which is subject to the approval of members at the Company's
Annual General Meeting to be held on June 14, 2003) or (v) assumed
or acquired any material liabilities that are not described in the
Prospectus;
(xii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of India, with
corporate power and
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authority to own or lease its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified would
not, individually or in the aggregate, be reasonably expected to
have a material adverse effect on the general affairs, management or
current or future consolidated financial position, prospects,
shareholders' equity or results of the operations of the Company (a
"Material Adverse Effect");
(xiii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares) have been duly and validly authorized
and issued, are fully paid and non-assessable and all of the issued
and outstanding Equity Shares conform to the description of the
Equity Shares contained in the Prospectus; all of the issued shares
of capital stock of Progeon have been duly and validly authorized
and issued, are fully paid and non-assessable and, except for
4,374,000 shares of Preferred Stock, Rs. 100 per share of Progeon
owned by another investor as set forth in the Prospectus, are owned
directly or indirectly by the Company, free and clear of all liens
or encumbrances, equities or claims; except for 11,675 equity shares
issuable under the ESOPs, for which listing is pending, all of the
issued and outstanding Equity Shares (including the Shares) have
been duly listed and admitted for trading on the Stock Exchange,
Mumbai, the Bangalore Stock Exchange and the National Stock Exchange
of India Limited (the "Indian Exchanges"); the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive rights, including, but not limited to, any such rights
under Section 81 of the Indian Companies Act, 1956 (the "Indian
Companies Act") or other rights to acquire the Shares or the ADSs in
connection with the transactions contemplated hereby, by the Indian
Purchase Offer Documents or otherwise; except as stated above, there
are no outstanding securities convertible into or exchangeable for,
or warrants, rights or options to purchase from the Company, or
obligations of the Company to issue Equity Shares or any other class
of capital stock of the Company, in connection with completion of
the transactions contemplated by the Indian Purchase Offer the
Shares may be freely deposited by or on behalf of the Selling
Shareholders with the Escrow Agent which shall form the underlying
shares for the ADRs to be issued; any restrictions on the future
deposit of Equity Shares are fully and accurately disclosed in the
Prospectus; and the ADSs will be freely transferable by the Selling
Shareholders to or for the account of the several Underwriters and
(to the extent described in the Prospectus) the initial purchasers
thereof; and there are no restrictions on subsequent transfers of
the ADSs under the laws of India and of the United States except as
described in the Prospectus under "Description of American
Depositary Receipts", "Description of Equity Shares", "Taxation",
"Enforceability of Civil Liabilities", "Restrictions on Foreign
Ownership of Indian Securities" or "Government of India Approvals";
(xiv) No shareholder of the Company or any other person has any
registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or
the ADS Registration Statement or included in the Offering;
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(xv) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; upon issuance by the Depositary of ADRs
evidencing ADSs against the deposit of the Shares in respect thereof
in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the persons in whose names
the ADRs are registered will be entitled to the rights specified
therein and in the Deposit Agreement; the Deposit Agreement and the
ADRs conform in all material respects to the descriptions thereof
contained in the Prospectus;
(xvi) (A) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and (B) each of the Escrow Agreement,
the R&T Agent Agreement and the Deposit Agreement has been duly
authorized, executed and delivered by the Company, and each such
document constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(xvii) Other than as set forth in the Prospectus, no consent,
approval, authorization, order of, or clearance by, or registration
or filing with any governmental agency or body or any court, any
stock exchange authorities in India or the United States, including
but not limited to the Indian Exchanges, the Nasdaq Stock Exchange,
the Reserve Bank of India (the "RBI"), the Ministry of Finance of
India (the "MOF"), the Department of Company Affairs of India (the
"DCA"), the Securities Exchange Board of India ("SEBI") and the
Foreign Investments Promotion Board ("FIPB") (each hereinafter
referred to as a "Governmental Agency") is required for the
consummation of the transactions contemplated by the Indian Purchase
Offer Documents (including, without limitation, the pro-rata
subscription mechanics set forth therein), the Deposit Agreement,
this Agreement, the deposit of the Shares with the Indian Domestic
Custodian acting on behalf of the Depositary by the Selling
Shareholders pursuant to the Deposit Agreement, or the issuance and
sale of ADRs evidencing the ADSs representing the Shares at each
Time of Delivery (as defined in Section 4 hereof) or the execution
and delivery of the Indian Purchase Offer Documents, the Deposit
Agreement or this Agreement, except for (A) registration of the
Shares and ADSs under the Act, and any filings required under Rule
424 of the Act, (B) any governmental authorizations as may be
required under US state securities or Blue Sky laws or any laws of
jurisdictions outside India and the United States in connection with
the purchase and distribution of the ADSs by or for the account of
the Underwriters and (C) all filings with the RBI and FIPB, all of
which have been made and are in full force and effect as of the date
hereof; and the
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Indian Purchase Offer has been conducted in compliance with all
applicable laws, rules and regulations under the laws of India.
(xviii) Other than as set forth in the Prospectus, no governmental
approvals are currently required in India in order for the Company
to pay dividends or other distributions declared by the Company to
holders of Equity Shares, including the Depositary and holders of
ADSs, or for the conversion by the Depositary of any dividends paid
in Indian Rupees to U.S. dollars or the repatriation thereof out of
India and no other withholding or other taxes under the laws and
regulations of India will be imposed in connection with the
declaration and payment by the Company of dividends and other
distributions in respect of shares of its capital stock;
(xix) The sales of the ADSs contemplated herein and the deposit of
the Equity Shares with the Indian Domestic Custodian on behalf of
the Depositary against issuance of the ADRs evidencing the ADSs and
the compliance by the Company with all of the provisions of this
Agreement, the Deposit Agreement, the Escrow Agreement, the R&T
Agent Agreement, the Invitation to Offer and the Letter of
Transmittal and the consummation of the transactions herein and
therein contemplated (i) will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound, if any, or to which any
of the property or assets of the Company is subject, except for, as
to subparagraph (i) of this Section 1 (xix) only, such conflicts,
breaches or violations as would not individually or in the aggregate
be reasonably expected to result in a Material Adverse Effect; (ii)
nor will such action result in any violation of the provisions of
the Company's Certificate of Incorporation, Articles of Association
and Memorandum of Association (collectively, the "Charter
Documents") or any statute, law, order, rule or regulation
applicable to the Company or any of its properties;
(xx) The Company is not (i) in violation of its Charter Documents,
(ii) in violation of any law, rule or regulation that is applicable
to the Company or (iii) in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party, if
any, or by which it or any of its properties may be bound, if any,
except for, as to subparagraphs (ii) and (iii) of this Section 1
(xx) only, such violations or defaults as would not individually or
in the aggregate be reasonably expected to result in a Material
Adverse Effect;
(xxi) Other than as set forth in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are or will be payable by or on behalf of
the Underwriters, or otherwise imposed on any payments made to the
Underwriters, to the Government of India or any political
subdivision or taxing authority thereof or therein in connection
with: (A) the deposit of Equity Shares by the Selling Shareholders
with the Escrow Agent pursuant to the Indian Purchase Offer
Documents, (B) the deposit with the Indian Domestic Custodian on
behalf of the Depositary of Equity Shares by the Escrow Agent on
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behalf of the Selling Shareholders against the issuance of ADRs
evidencing ADSs, (C) the sale and delivery on behalf of the Selling
Shareholders of the ADSs to or for the respective accounts of the
Underwriters as set forth in the Prospectus and pursuant to the
terms of this Agreement, (D) the sale and delivery outside of India
by the Underwriters of the ADSs to the purchasers thereof in the
manner contemplated pursuant to the terms of this Agreement or (E)
any other transaction or payment contemplated by this Agreement, the
Deposit Agreement or any Indian Purchase Offer Document; provided
that no representation is made hereby with respect to any commission
received or other payment made to the Underwriters pursuant to
Section 2 of this Agreement;
(xxii) Neither the Company nor any of its subsidiaries or affiliates
has taken, directly or indirectly, any action which was designed to
or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares and ADSs;
(xxiii) The statements set forth in the Prospectus under the
captions "Description of Equity Shares" and "Description of American
Depositary Receipts", insofar as they purport to constitute a
summary of the terms of the Equity Shares and the ADSs,
respectively, and under the captions "Taxation", "Enforceability of
Civil Liabilities", "Restrictions on Foreign Ownership of Indian
Securities", "Government of India Approvals" and "The Indian
Invitation to Offer", fairly summarize, in all material respects,
the matters referred to therein;
(xxiv) Other than as set forth in the Prospectus, there are no
legal, governmental or arbitrative proceedings, disputes, actions or
suits pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate either (i) be reasonably expected to have a material
adverse effect on the Offering, performance of this Agreement or the
consummation of any of the transactions described herein or
contemplated hereby, (ii) be reasonably expected to result in a
Material Adverse Effect or (iii) that are required to be described
in the Registration Statement or the Prospectus and are not so
described; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(xxv) The Company is not and, after giving effect to the Offering,
will not be required to register as an "investment company" under
the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xxvi) The forms of the Registration Statement, the Prospectus, the
ADS Registration Statement, and the filing of the Registration
Statement, the Prospectus and the ADS Registration Statement with
the Commission have been duly authorized by and on behalf of the
Company and the Registration Statement and the ADS Registration
Statement have been duly executed pursuant to such authorization by
and on behalf of the Company;
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(xxvii) The Company has all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and
from all Governmental Agencies that are necessary to own or lease
their properties and conduct their businesses as described in the
Prospectus;
(xxviii) The Company is not a Passive Foreign Investment Company
within the meaning of Section 1297 of the United States Internal
Revenue Code of 1986, as amended;
(xxix) KPMG, who have certified the Company's audited, fiscal year
end financial statements, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(xxx) The audited consolidated financial statements and the interim
unaudited consolidated financial statements (and the notes thereto)
(the "Consolidated Financial Statements") of the Company included in
the Prospectus present fairly the financial position of the Company
as of the dates indicated and the results of operations and changes
in financial position of the Company for the periods specified, and
the Consolidated Financial Statements have been prepared in
conformity with generally accepted accounting principles in the
United States ("US GAAP") applied on a consistent basis throughout
the periods presented (other than as described therein); the summary
and selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a
basis consistent with that of the Consolidated Financial Statements,
except as otherwise indicated in the Prospectus; no other financial
statements, schedules or pro forma financial information of the
Company or any of its subsidiaries are required by the Act or the
rules and regulations thereunder to be included or incorporated by
reference in the Prospectus;
(xxxi) Except as otherwise disclosed in the Prospectus, the Company
owns or possesses the patents, patent licenses, licenses,
trademarks, service marks, trade names, service names, copyrights
and other intellectual property rights ("Intellectual Property")
reasonably necessary to conduct its business as presently conducted;
the Intellectual Property used by the Company in the conduct of its
businesses does not infringe on the rights of any third party,
except for any such infringement which would not be reasonably
expected to result in a Material Adverse Effect; and the Company has
not received notice or claim of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property,
which infringement or conflict, if the subject of an unfavorable
decision, would be reasonably expected to result in a Material
Adverse Effect;
(xxxii) Under the laws of India, each holder of ADRs evidencing ADSs
issued pursuant to the Deposit Agreement shall be entitled, subject
to the Deposit Agreement, to seek enforcement of its rights through
the Depositary or its nominee registered as representative of the
holders of the ADRs in a direct suit, action or proceeding against
the Company;
11
(xxxiii) Except as described in the Prospectus, this Agreement or
the Indian Purchase Offer Documents, all amounts payable by the
Escrow Agent in respect of the ADRs evidencing the ADSs or the
underlying Shares shall be made free and clear of and without
deduction for or on account of any taxes imposed, assessed or levied
by India or any authority thereof or nor are any taxes imposed in
India on, or by virtue of the execution or delivery of, such
documents;
(xxxiv) The Company is insured by recognized, financially sound and
reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed adequate
and customary for their businesses including, but not limited to,
policies covering real and personal property owned or leased by the
Company against theft, damage, destruction, acts of vandalism and
earthquakes; the Company has no reason to believe that it will not
be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct
its business as now conducted; the Company has not been denied any
insurance coverage that it has sought or for which it has applied;
(xxxv) This Agreement, the Deposit Agreement and the Indian Purchase
Offer Documents are in proper form under the laws of India for the
enforcement thereof against the Company pursuant to and in
accordance with the laws of India; to ensure the legality, validity,
enforceability and admissibility into evidence in India of each of
this Agreement, the Deposit Agreement or any of the Indian Purchase
Offer Documents, it is not necessary that this Agreement, the
Deposit Agreement or any of the Indian Purchase Offer Documents be
filed or recorded with any court or other authority in India or that
any stamp or similar tax be paid in India or in respect of this
Agreement, the Deposit Agreement, any Indian Purchase Offer Document
or any other document to be furnished hereunder or thereunder,
except that this Agreement, the Escrow Agreement, the R&T Agent
Agreement, the Letters of Transmittal and the Deposit Agreement will
only be admissible in evidence in India for purposes of enforcement
if they are duly stamped in accordance with the Indian Stamp Act,
1899 and the Xxxxxxxxx Xxxxx Xxx, 0000;
(xxxvi) The Company has filed all necessary federal, central, state
and foreign income and franchise tax returns (including, without
limitation, those required by United States federal, state and local
authorities) or have properly requested extensions thereof and have
paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied
against any of them except as may be being contested in good faith
and by appropriate proceedings; the Company has made adequate
charges, accruals and reserves in the applicable financial
statements in respect of all federal, central, state and foreign
income and franchise taxes (including, without limitation, those
required by United States federal, state and local authorities) for
all periods as to which the tax liability of the Company has not
been finally determined;
(xxxvii) There are no material business relationships or
related-party transactions involving the Company or any subsidiary
or any other person that have been conducted or entered into by the
Company or any subsidiary on terms that are less
12
favorable to the Company or such subsidiary, as the case may be, as
could be obtained on an arm's length basis from an unaffiliated
third party;
(xxxviii)Neither the Company nor, to the best of the Company's
knowledge, any employee or agent of the Company, has made any
contribution or other payment to any official of, or candidate for,
any U.S. or Indian, federal, central, state or foreign office in
violation of any law or of the character required to be disclosed in
the Prospectus;
(xxxix) The Company maintains a system of accounting controls
sufficient to provide reasonable assurances that: (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with US GAAP and
to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(xl) The Company is not engaged in any trading activities involving
commodity contracts or other trading contracts which are not
currently traded on a securities or commodities exchange and for
which the market value cannot be determined;
(xli) Except as would not individually or in the aggregate be
reasonably expected to result in a Material Adverse Effect, the
Company is not in violation of any U.S. or Indian, federal, central,
state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including without limitation, laws
and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum
products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Materials of Environment Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company under
applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company received any written
communication, whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Company is in
violation of any Environmental Law and to the best of the Company's
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal
of any Material of Environmental Concern, that reasonably could
result in a violation of any Environmental Law or form the basis of
a potential claim against the Company or against any person or
entity whose liability for any claim the Company has retained or
assumed either contractually or by operation of law; and
13
(xlii) Except as otherwise disclosed in the Prospectus, the Company
and any "employee benefit plan" (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
"ERISA")) established or maintained by the Company or its "ERISA
Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986,
as amended, and the regulations and published interpretations
thereunder (the "Code") of which the Company is a member. No
"reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit
plan" established or maintained by the Company or any of its ERISA
Affiliates; no "employee benefit plan" established or maintained by
the Company or any of its ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any "amount of unfunded
benefit liabilities" (as defined under ERISA); neither the Company
nor any of its ERISA Affiliates has incurred or reasonably expects
to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code; each "employee
benefit plan" established or maintained by the Company or any of its
ERISA Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether
by action or failure to act, which would cause the loss of such
qualification.
(b) Each of the Selling Shareholders represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) Such Selling Shareholder has timely received the Invitation to
Offer and upon the terms and conditions set forth and described
therein has duly executed and delivered the Letter of Transmittal
and the Power of Attorney contained therein pursuant to which such
Selling Shareholder has appointed the Attorney-in-Fact as its
attorney-in-fact with respect to the Company's invitation to
participate in this Offering and to whom such Selling Shareholder
has irrevocably granted the authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to determine the
purchase price to be paid by the Underwriters to the Selling
Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder to the
Indian Domestic Custodian and otherwise to act on behalf of such
Selling Shareholder in connection with the transactions contemplated
by this Agreement and the Escrow Agreement; and each of the Letter
of Transmittal and Power of Attorney to which such Selling
Shareholder is a party has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder and
constitutes a valid, irrevocable and legally binding agreement of
such Selling Shareholder, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(ii) Equity Shares in dematerialized book-entry form representing
all of the Shares to be deposited with the Indian Domestic Custodian
acting on behalf of the Depositary with the resultant ADSs to be
sold by such Selling Shareholder hereunder
14
have been placed in the custody of the Escrow Agent; the
arrangements for custody and delivery of such Equity Shares made by
such Selling Shareholder hereunder and under the Escrow Agreement,
are not subject to termination by any acts of such Selling
Shareholder, or by operation of law, whether by death or incapacity
of such Selling Shareholder or the occurrence of any other event;
and in the event of any such death, incapacity or other event,
Equity Shares will be delivered by the Escrow Agent to the Indian
Domestic Custodian acting on behalf of the Depositary in accordance
with the terms and conditions of this Agreement and the Escrow
Agreement as if such death, incapacity or other event had not
occurred, regardless of whether the Indian Domestic Custodian shall
have received notice of such death, incapacity or other event;
(iii) This Agreement has been duly authorized, executed and
delivered by such Selling Shareholder, acting through its
Attorney-in-Fact, and constitutes a valid and legally binding
agreement of such Selling Shareholder, enforceable in accordance
with its terms, subject, as to enforceability, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) No consent, approval, authorization, order of, clearance by or
registration or filing with any Governmental Agency is required for
the consummation of the transactions contemplated by the Prospectus,
the execution and delivery of the Indian Purchase Offer Documents
(including, without limitation, the pro-rata subscription mechanics
set forth therein) and the deposit of the Shares with the Indian
Domestic Custodian acting on behalf of the Depositary against
issuance of the ADRs evidencing the ADSs to be delivered at each
Time of Delivery, for the sale and delivery of the ADSs to be sold
by such Selling Shareholder hereunder and for the execution,
delivery and performance by such Selling Shareholder of this
Agreement, except for such consents, approvals, authorizations,
orders, clearances, filings or registrations (A) as have been
obtained or made prior to the date of this Agreement and are in full
force and effect, (B) as may be required under the Act, the rules
and regulations of the Commission and under US state securities or
Blue Sky laws or (C) as may be required by the laws of or any
Governmental Agency in any jurisdiction outside the United States or
India in connection with equity offerings generally; and such
Selling Shareholder has full right, power and authority to enter
into and perform under each of the Indian Purchase Offer Documents
and this Agreement and to transfer and deliver the Shares to the
Indian Domestic Custodian acting on behalf of the Depositary for
deposit against issuance of the ADRs evidencing the ADSs to be sold
by such Selling Shareholder hereunder;
(v) The sale of the ADSs to be sold by such Selling Shareholder
hereunder, the deposit of the Shares with the Indian Domestic
Custodian acting on behalf of the Depositary against issuance of the
ADRs evidencing the ADSs to be delivered at each Time of Delivery,
the compliance by such Selling Shareholder with all of the
provisions of this Agreement, the Escrow Agreement and the other
Indian Purchase Offer Documents to which it is a party and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
15
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder is bound, or to which any of
the property or assets of such Selling Shareholder is subject, nor
will such action result in any violation of any statute, law, order,
rule or regulation of any Governmental Agency applicable to such
Selling Shareholder or the property of such Selling Shareholder;
(vi) Such Selling Shareholder has, and immediately prior to each
Time of Delivery such Selling Shareholder will have, good and valid
title to the Shares to be deposited with the Depositary against
issuance of the ADRs evidencing the ADSs to be sold by such Selling
Shareholder hereunder, free and clear of all liens, encumbrances,
equities or claims of any sort whatsoever, other as may be imposed
by the Escrow Agreement;
(vii) The ADSs delivered at each Time of Delivery by such Selling
Shareholder will be freely transferable by such Selling Shareholder
to or for the account of the several Underwriters and (to the extent
described in the Prospectus) the purchasers thereof; and there are
no restrictions on subsequent transfers of the Shares or ADSs under
the laws of India and of the United States except as described in
the Prospectus under the caption "Description of Equity Shares",
"Description of American Depositary Receipts" or "Restrictions of
Foreign Ownership of Indian Securities";
(viii) Such Selling Shareholder has not taken, directly or
indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and ADSs;
(ix) The Registration Statement and the Prospectus, insofar as they
relate to written information furnished to the Company by such
Selling Shareholder expressly for use therein, when such documents
become effective or are filed with the Commission, as the case may
be, will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(x) Other than as set forth in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are or will be payable by or on behalf of
the Underwriters, or otherwise imposed on any payments made to the
Underwriters, to the Government of India or any political
subdivision or taxing authority thereof or therein in connection
with: (A) the deposit of Equity Shares by the Selling Shareholders
with the Escrow Agent pursuant to the Indian Purchase Offer
Documents, (B) the deposit with the Indian Domestic Custodian on
behalf of the Depositary of Equity Shares by the Escrow Agent on
behalf of the Selling Shareholders against the issuance of ADRs
evidencing ADSs, (C) the sale and delivery on behalf of the Selling
Shareholders of the ADSs to or for the respective accounts of the
Underwriters as set forth in the Prospectus and pursuant to the
terms of this Agreement, (D) the sale and delivery outside of India
by the Underwriters of the ADSs to the purchasers thereof in the
manner contemplated pursuant to the terms of this Agreement or (E)
any other transaction or payment
16
contemplated by this Agreement, the Deposit Agreement or any Indian
Purchase Offer Document; provided that no representation is made
hereby with respect to any commission received or other payment made
to the Underwriters pursuant to Section 2 of this Agreement;
(xi) All expenses and other amounts that may be payable by such
Selling Shareholder under this Agreement shall be made free and
clear of and without deduction for or on account of any taxes
imposed, assessed or levied by India or any authority thereof or
therein except as described in the Prospectus nor are any taxes
imposed in India on, or by virtue of the execution or delivery of,
this Agreement and the Indian Purchase Offer Documents; and
(xii) This Agreement and the Indian Purchase Offer Documents to
which the Selling Shareholder is a party are in proper legal form
under the laws of India for the enforcement thereof against such
Selling Shareholder pursuant to and in accordance with the laws of
India; to ensure the legality, validity, enforceability and
admissibility into evidence in India thereof, it is not necessary
that this Agreement or any Indian Purchase Offer Document to which
the Selling Shareholder is a party be filed or recorded with any
court or other authority in India or that any stamp or similar tax
be paid in India or in respect of this Agreement and the Indian
Purchase Offer Documents to which the Selling Shareholder is a
party, except that this Agreement and the Indian Purchase Offer
Documents to which the Selling Shareholder is a party will only be
admissible in evidence in India for purposes of enforcement if they
are duly stamped in accordance with the Indian Stamp Act, 1899 and
the Xxxxxxxxx Xxxxx Xxx, 0000.
2. Subject to the terms and conditions herein set forth and set forth in
Section 7 of this Agreement, (a) the Selling Shareholders severally and not
jointly agree to sell to each of the Underwriters the number of Firm ADSs set
forth opposite the name of each of the Selling Shareholders, respectively, in
Schedule I hereto, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Shareholders, at a purchase price per ADS
of US$ _____ the number of Firm ADSs set forth opposite the name of such
Underwriter in Schedule II hereto and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional ADSs as
provided below, the Selling Shareholders as set forth in Schedule I hereto
agree, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from such
Selling Shareholders, at the purchase price per ADS set forth in clause (a) of
this Section 2, that portion of the number of Optional ADSs as to which such
election shall have been exercised (to be adjusted by the Representatives so as
to eliminate fractional shares) determined by multiplying such number of
Optional ADSs by a fraction, the numerator of which is the maximum number of
Optional ADSs which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule II hereto and the denominator
of which is the maximum number of Optional ADSs that all of the Underwriters are
entitled to purchase hereunder.
The Selling Shareholders as set forth in Schedule I hereto, severally and
not jointly, hereby grant to the Underwriters the right to purchase at their
election up to _________ [15%] Optional ADSs as set forth in Schedule I hereto,
at the purchase price per ADS set
17
forth in the paragraph above. Any such election to purchase Optional ADSs shall
be made in proportion to the maximum number of Optional ADSs to be sold by such
Selling Shareholders. Any such election to purchase Optional ADSs may be
exercised only once and by written notice from the Representatives to such
Selling Shareholders and the Company, given within a period of seven calendar
days after the date of this Agreement and setting forth the aggregate number of
Optional ADSs to be purchased and the date on which such Optional ADSs are to be
delivered, as determined by the Representatives but in no event earlier than the
First Time of Delivery or, unless the Representatives, such Selling Shareholders
and the Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by the Representatives of the release of the
Firm ADSs, the several Underwriters propose to offer the Firm ADSs for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) ADRs evidencing the ADSs to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives or their United States selling
agents may request upon at least forty-eight hours' notice to the Company and
the Selling Shareholders prior to each Time of Delivery (the "Notification
Time"), shall be delivered by or on behalf of the Selling Shareholders to the
Representatives or their United States selling agents, through the facilities of
the Depositary or The Depository Trust Company ("DTC"), for the account of such
Underwriter. Subsequent to such delivery of ADRs evidencing the ADSs for the
account of such Underwriter by or on behalf of the Selling Shareholders, such
Underwriter shall pay the purchase price therefore (net of expenses as set forth
in Section 6 hereof) by wire transfer to the accounts designated by the Selling
Shareholders pursuant to the terms, conditions and time period set forth in the
Indian Purchase Offer Documents, payable to the order of the Selling
Shareholders or their agent under the Indian Purchase Offer Documents in Federal
(same day) funds. The Selling Shareholders will cause the certificates
representing ADRs evidencing the ADSs to be made available by the Depositary for
checking at least twenty-four hours prior to the Time of Delivery with respect
thereto at the office of the Depositary or DTC, as applicable, or its designated
custodian (the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm ADSs, 9:30 a.m., New York time, on June [__], 2003 or such other time
and date as the Representatives and the Selling Shareholders may agree upon in
writing, and, with respect to the Optional ADSs, 9:30 a.m. New York time, on the
date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional ADSs, or
such other time and date as the Representatives and the Selling Shareholders
selling such Optional ADSs may agree upon in writing. Such time and date for
delivery of the Firm ADSs is herein called the "First Time of Delivery", such
time and date for delivery of the Optional ADSs, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and
18
ADSs and any additional documents requested by the Underwriters pursuant to
Section 7(l) hereof will be delivered at the offices of Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (the "Closing
Location"), and the ADSs will be delivered as specified in Section (a) above,
all at such Time of Delivery. In addition, copies of all such documents shall be
concurrently delivered to the offices of Xxxxxx & Xxxxxxx LLP, 00 Xxxxxxx Xxxxx
#00-00, XXX Xxxxx 0, Xxxxxxxxx 000000 for purposes of review and closing
preparation. A meeting will be held at the Closing Location at 6:00 a.m.,
California Time, on the Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York, India or London are generally authorized or obligated by law or
executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on
the second New York business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be
disapproved by the Representatives promptly after reasonable notice
thereof, provided, however, that the Representatives shall not
unreasonably withhold approval of the amendment or supplement to the
Registration Statement; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to
file promptly all reports required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the Offering; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the ADSs for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purposes, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuances of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(ii) To take such action as the Representatives may reasonably
request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the ADSs, provided
that in connection
19
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(iii) Prior to 12:00 noon, New York City time, on the New York
business day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the
Prospectus in New York City or such other place as the
Representatives may specify in such quantities as the
Representatives may reasonably request, and, if the delivery of a
Prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with
the Offering and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representatives and upon
its request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the ADSs at any time
nine months or more after the time of issue of the Prospectus, upon
the Representatives' request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act. For the purposes of this
Section, "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or
executive order to close;
(iv) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(v) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus,
not to, and not to announce its intention to, directly or
indirectly, issue, offer, sell, contract to sell, grant any option
to purchase, make any short sale or otherwise dispose of any Equity
Shares or ADSs or any securities convertible into, exchangeable for
or that represent the right to receive Equity Shares or ADSs,
without the Representatives' prior written consent, except (i)
pursuant to any employee stock option plan that has been or may be
adopted by the Company, (ii) with respect to any Equity Shares to be
issued as an annual dividend or annual bonus issue to directors,
supervisors and employees which is approved by the Company's
shareholders or (iii) in connection with business
20
acquisitions by the Company where the Equity Shares so issued are
transferred in exchange for shares of the company being acquired,
provided that with respect to this subparagraph (iii) the
recipient(s) of such Equity Shares shall agree to the restrictions
set forth in this paragraph for the remainder of such 90-day period.
The Company will not facilitate any conversions or exchanges of
Equity Shares into ADSs during this 90-day period;
(vi) To furnish to the Depositary for mailing to all holders of
record of ADRs as soon as practicable after the end of each fiscal
year an annual report (in English) (including a balance sheet and
statements of income, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants and prepared in conformity with US GAAP) and to
file with Commission on a timely basis for each year an annual
report on Form 20-F that includes a reconciliation of net income,
total shareholders' equity and other financial statement items as
required by the rules and regulations of the Commission to US GAAP,
and, as soon as practicable after the end of each of the first three
quarters of each fiscal year prepared in accordance with US GAAP
(beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its holders of
record of ADRs consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail.
(vii) During a period of two years from the effective date of the
Registration Statement, to furnish to the Representatives as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange
on which any class of securities of the Company is listed and which
are not otherwise publicly available directly on the Company's
website;
(viii) Not to (and to cause its subsidiaries and affiliates not to)
take, directly or indirectly, any action which is designed to or
which constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company or facilitate the sale or resale of the Shares and
the ADSs;
(ix) To cause the ADSs to be listed on the Nasdaq National Market
(the "Exchange");
(x) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the
Company's trademarks, servicemarks and corporate logo for the use on
the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the ADSs (the "License");
provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be
assigned or transferred;
(xi) To make any post-closing filing, notice or undertaking
requested or required by any Governmental Authority (including the
post closing report to be filed with the RBI within 30 days of
closing of the Offering) with respect to the transactions
contemplated by the Indian Purchase Offer Documents and this
Agreement; and
21
(xii) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) by 10:00p.m., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
(b) Each of the Selling Shareholders agrees with each of the
Underwriters:
(i) With respect to each Selling Shareholder who is an executive
officer or director of the Company, during the period beginning from
the date hereof and continuing to and including the date 90 days
after the date of the Prospectus, not to, and not to announce his,
her or its intention to, directly or indirectly, offer, sell,
contract to sell, grant any option to purchase, make any short sale
or otherwise dispose of or file a registration statement or similar
document relating to ADSs or Equity Shares or any securities
convertible into, exchangeable for or that represent the right to
receive Equity Shares or ADSs, without the Representatives' prior
written consent, except for ADSs and Equity Shares being by such
executive officers or directors hereby and except as otherwise
provided pursuant to the Lock-Up Agreements signed by such executive
officers or directors the form of which is attached hereto as Annex
IV;
(ii) Not to (and to cause his, her or its affiliates, if any, not
to) take, directly or indirectly, any action which is designed to or
which constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company or facilitate the sale or resale of the Shares or the
ADSs;
(iii) To indemnify and hold the Underwriters harmless against any
documentary, stamp or similar issuance or transfer taxes, duties or
fees and any transaction levies, commissions or brokerage charges,
including any interest and penalties, payable in India, which are or
may be required to be paid in connection with the creation,
allotment, issuance, offer and distribution of the ADSs to be sold
by such Selling Shareholder and the execution and delivery of this
Agreement and the Deposit Agreement; provided, however, that such
Selling Shareholder shall not be responsible for any such taxes,
duties, fees, levies or charges that arise as a result of the
distribution of the ADSs by the Underwriters in a manner other than
that as is customary in such transactions or that relate to the ADSs
to be sold by the other Selling Shareholders;
(iv) Prior to each Time of Delivery, to cause to be deposited with
the Indian Domestic Custodian on such Selling Shareholder's behalf
pursuant to the Escrow Agreement and the Indian Purchase Offer
Documents the Equity Shares to be sold by Such Selling Shareholder
and to comply with the Deposit Agreement so that ADRs evidencing
ADSs to be sold by such Selling Shareholder will be executed (and,
if applicable, countersigned) and issued by the Depositary against
receipt of such Shares and delivered to the Underwriters at such
Time of Delivery; and
22
To comply with the terms and conditions of each of the Indian Purchase
Offer Documents and not to modify, amend, change or alter any term, obligation
or condition contained or set forth in any such document without the prior
written consent of the Representatives.
6. Provided that the transactions contemplated in this Agreement are
consummated, the Selling Shareholders covenant and agree with the several
Underwriters that (a) the Selling Shareholders will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the Indian Purchase Offer and the registration of
the ADSs under the Act (including all fees, disbursements and expenses of the
Company's counsel associated with the review and approval of the Offering and
the Indian Purchase Offer by Indian federal, central, state and local
authorities) and all other expenses in connection with the preparation, printing
and filing of the Indian Purchase Offer Documents, Registration Statement
(including financial statements, exhibits, schedules, consents and certificates
of experts), the ADS Registration Statement (including exhibits), any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto, including all printing, graphic and document production and translation
costs associated therewith, and the mailing and delivering of copies thereof to
its shareholders or to the Underwriters and dealers, as the case may be; (ii)
the cost of preparing, printing, producing, filing and delivering any Agreement
among Underwriters, this Agreement, the Agreement between Syndicates, the
Selling Agreements, the Deposit Agreement, the Blue Sky Memorandum, the Indian
Purchase Offer Documents, closing documents (including compilations thereof) and
any other documents in connection with the Offering, purchase, sale and delivery
of the ADSs; (iii) all expenses in connection with the qualification or
registration (or of obtaining exemptions from the qualification and
registration) of the ADSs for offering and sale under US state securities laws,
including the fees and disbursements of counsel for the Underwriters (such
amount not to exceed $20,000) in connection with such qualification and in
connection with the Blue Sky surveys; (iv) all fees and expenses in connection
with listing the Shares and ADSs on the Nasdaq National Market and the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the ADSs; (v) the fees and
expenses incurred in connection with admitting the ADSs for clearance and
settlement on the facilities of DTC; (vi) the reasonable costs and expenses of
the Company relating to investor presentations on any "road show" and electronic
roadshow undertaken in connection with the marketing of the Offering, including,
without limitation, cost of road show venues, within city local conveyance,
meals, lodging expenses, and other related expenses incurred by members of the
Company's management, and the cost of any aircraft chartered in connection with
the road show, if applicable; (vii) the cost of printing or producing any non-US
legal investment memorandum in connection with the offer and sale of the ADSs
under foreign (non-US federal or state) securities laws and all expenses in
connection with the qualification of the ADSs for offer and sale under such
foreign securities laws and (b) the Selling Shareholders will pay or cause to be
paid all expenses and taxes arising as a result of the Indian Purchase Offer and
the deposit by each of the Selling Shareholders of the Shares with the Indian
Domestic Custodian acting on behalf of the Depositary and the issuance and
delivery of the ADRs evidencing ADSs in exchange therefor by the Depositary to
the Selling Shareholders, transfer and delivery of the ADSs to the Underwriters,
including any stamp, transfer or other taxes payable thereon, and of the sale of
the Shares by the Underwriters to the initial purchasers thereof in the manner
contemplated under this Agreement, including, in
23
any such case under this Agreement, any income, capital gains, withholding,
transfer or other tax asserted against an Underwriter by reason of the purchase
and sale of an ADS or a Share pursuant to this Agreement or the Agreement
between Syndicates; the fees and expenses (including fees and disbursements of
counsel), if any, of the Depositary and the Indian Domestic Custodian appointed
under the Deposit Agreement; the fees and expenses of the Attorney-in-Fact, the
Escrow Agent and the R&T Agent under the Indian Purchase Offer Documents; the
fees and expenses of the Authorized Agent (as defined in Section 15 hereof); the
cost of preparing any ADR certificates; the cost and charges of any transfer
agent or registrar. The Selling Shareholders also covenant and agree with the
several Underwriters that they will pay or cause to be paid all other costs and
expenses incident to the performance of their obligations hereunder or under the
Indian Purchase Offer Documents which are not otherwise specifically provided
for in this Section 6. If, however, the transactions contemplated in this
Agreement are not consummated or this Agreement is terminated, the Company
covenants and agrees with the several Underwriters to pay or cause to be paid
all of the expenses referenced in this Section 6.
7. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company and the Selling Shareholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction;
(b) Xxxxxx & Xxxxxxx LLP, special United States counsel for the
Underwriters, shall have furnished to the Representatives such opinion or
opinions, dated such Time of Delivery, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation, special
United States counsel for the Company, shall have furnished to the
Representatives their written opinion, dated such Time of Delivery, in form and
substance satisfactory to the Representatives as attached hereto as Annex II;
(d) Xxxxxxxx Xxxxxx & Co., India counsel for the Company, shall have
furnished to the Representatives their written opinion, dated such Time of
Delivery, in form and substance satisfactory to the Representatives as attached
hereto as Annex III;
(e) Amarchand & Mangaldas & Xxxxxx X. Xxxxxx & Co. Advocates & Solicitors,
India counsel for the Underwriters, shall have furnished to the Representatives
24
such opinion or opinions, dated such Time of Delivery, substantially in the same
form and with the same content as that given by Xxxxxxxx Xxxxxx & Co., India
counsel for the Company, and with respect to any such additional matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(f) White & Case LLP, counsel for the Depositary, shall have furnished to
the Representatives their written opinion, dated such Time of Delivery, in form
and substance satisfactory to the Representatives, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and constitutes a valid and legally binding obligation
of the Depositary, enforceable in accordance with its terms, except
insofar as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other laws relating to creditors' rights
generally and general principles of equity;
(ii) When ADRs evidencing ADSs are issued in accordance with the Deposit
Agreement against the deposit, pursuant to the terms of the Deposit
Agreement, of duly authorized, validly issued, fully paid and
non-assessable Shares of the Company, such ADRs will be duly and validly
issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement; and
(iii) Under the terms of the Deposit Agreement, the Company is not obliged
to make a copy of the Invitation to Offer available for inspection at its
Principal Office (as defined in the Deposit Agreement) or to mail a copy
of the Invitation to Offer to the Registered Holders (as defined in the
Deposit Agreement).
(g) On the date hereof, at 9:30 a.m. New York time, on the effective date
of any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, KPMG shall have
furnished to the Representatives a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to the Representatives,
containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters, delivered according to Statement
of Auditing Standards No. 72 (or any successor bulletin), with respect to the
audited and unaudited financial statements and certain financial information
contained in the Registration Statement, the ADS Registration Statement and the
Prospectus, to the effect set forth in Annex I hereto;
(h) Neither the Company nor Progeon shall have sustained since the date of
the latest audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as set forth in the Prospectus
that would have or would reasonably be expected to have a Material Adverse
Effect, and since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock, long-term debt or short-term debt of the
Company or Progeon or any material adverse change, or any development that could
reasonably be expected to affect the general affairs, management, prospects,
financial position, shareholders' equity or results of
25
operations of the Company or Progeon, other than as set forth in the Prospectus,
the effect of which, in any such case is in the judgment of the representative
of the Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the ADSs
being delivered at such Time of Delivery on the terms and in the manner set
forth in the Prospectus;
(i) As of the date hereof, the Escrow Agent is holding _____________
[between 2,000,000 and 3,000,000] Equity Shares of the Company, and neither the
Company, the R&T Agent nor the Escrow Agent shall have received any notice by
any Selling Shareholder seeking to withdraw the Equity Shares offered by them to
participate in the Offering, and no such withdrawals have taken place;
(j) The ADSs to be sold by the Selling Shareholders at such Time of
Delivery shall have been duly listed on the Exchange;
(k) The Depositary shall have furnished or caused to be furnished to the
Representatives at such Time of Delivery certificates satisfactory to the
Representatives evidencing the deposit with it of the Shares being so deposited
against issuance of ADRs evidencing the ADSs to be delivered by the Selling
Shareholders at such Time of Delivery, and the execution, countersignature (if
applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the
Deposit Agreement;
(l) The Company and each of its executive officers and directors who are
Selling Shareholders (the "Insider Selling Shareholders") shall have furnished
or caused to be furnished to the Representatives at such Time of Delivery
certificates of officers of the Company and of such Insider Selling
Shareholders, respectively, satisfactory to the Representatives as to the
accuracy in all material respects, of the representations and warranties of the
Company and such Insider Selling Shareholders, respectively, herein at and as of
such Time of Delivery, as to the performance in all material respects, by the
Company and such Insider Selling Shareholders of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as the Representatives may reasonably request, and the
Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (i) of this Section, and as to such
other matters as the Representatives may reasonably request;
(m) The R&T Agent and the Escrow Agent shall have furnished or caused to
be furnished to the Representatives at such Time of Delivery certificates of
officers of the R&T Agent and the Escrow Agent, respectively, as to the
performance in all material respects by the R&T Agent and the Escrow Agent of
all of their respective obligations under the Indian Purchase Offer Documents to
be performed at or prior to such Time of Delivery, and as to such other matters
as the Representatives may reasonably request;
(n) Each of the Company's executive officers and directors shall have
furnished to the Representatives at such Time of Delivery a Lock-Up Agreement
substantially in the form attached hereto as Annex IV;
(o) (i) the requisite Indian Purchase Offer Documents shall have been
executed by each of the Selling Shareholders, the Escrow Agent and the R&T Agent
and shall be in full force and effect; (ii) neither the Company, the Selling
Shareholders, the Escrow Agent,
26
the R&T Agent, nor any other party shall have changed, modified, altered or
otherwise amended the terms and conditions set forth in the Indian Purchase
Offer Documents without the written consent of the Representatives and (iii)
Equity Shares in book-entry form representing all of the Shares to be
represented by ADSs to be sold at such Time of Delivery by each Selling
Shareholder shall have been placed in custody under the Escrow Agreement, duly
executed and delivered by the appropriate Selling Shareholder to the Escrow
Agent, at or prior to the business day immediately preceding the date of such
Time of Delivery;
(p) The Company, the Escrow Agent and the R&T Agent, as the case may be,
shall have furnished the Representatives upon any request made by them copies of
each Indian Purchase Offer Document, including any Letter of Transmittal or
summary or tally of Shares delivered to the Escrow Agent o for purchase
thereunder delivered by any Selling Shareholder to the Escrow Agent or R&T
Agent, for review by the Representatives at any time or times (which may be
daily, if requested by the Representatives) prior to any Time of Delivery; and
(q) The Company has caused this Agreement, the Deposit Agreement, the
Escrow Agreement, the R&T Agent Agreement and the Letters of Transmittal to be
duly stamped in accordance with the Indian Stamp Act, 1899 and the Xxxxxxxxx
Xxxxx Xxx, 0000 and has paid to the relevant authorities the proper stamp duty
chargeable thereon.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter,
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act and each affiliate of
any Underwriter within the meaning of Rule 405 under the Securities Act selling
Shares or ADSs on behalf of an Underwriter, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or other United States federal or state
statutory law or regulation or Indian common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based in whole or in part upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the ADS Registration Statement or the Prospectus, or any
amendment or supplement thereto, or (ii) arise out of or are based in whole or
in part upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the ADS Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives expressly for use
therein; provided further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
ADSs to a person as to whom it shall be established that there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as then amended or supplemented in any case where
the delivery is required by the Act if the Company has previously furnished
copies thereof in such quantities as requested by such Underwriter to
27
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was corrected in the Prospectus or in the
Prospectus as then amended or supplemented.
(b) The Selling Shareholders, severally and not jointly, agree to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act selling Shares or ADSs on behalf of an
Underwriter, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act, the
Exchange Act or other United States federal or state statutory law or regulation
or Indian common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based in
whole or in part upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the ADS Registration Statement or the Prospectus, or any amendment or
supplement thereto, or (ii) arise out of or are based in whole or in part upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) arise out of are based in whole or in part upon any inaccuracy in the
representations and warranties of the Selling Shareholders contained herein; or
(iv) arise out of are based in whole or in part upon any failure of the Selling
Shareholders to perform its obligations hereunder or under law, but with respect
to (i) and (ii) above, only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission is made in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with information based on or provided by or on behalf of such Selling
Shareholder in Section 1(b) of this Agreement or in the Letter of Transmittal;
provided, that the liability of any Selling Shareholder under this subsection
(b) shall not exceed the amount of the gross proceeds received by such Selling
Shareholder in the Offering; and provided further, the Selling Shareholders
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein; and provided further,
that the Selling Shareholders shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold ADSs to a person as
to whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or the
Prospectus as then amended or supplemented in any case where the delivery is
required by the Act if the Company has previously furnished copies thereof in
such quantities as requested by such Underwriter to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary Prospectus
which was corrected in the Prospectus or in the Prospectus as then amended or
supplemented.
28
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers, and each
person, if any, who controls the Company within the meaning of the Act or the
Exchange Act, and each Selling Shareholder against any losses, claims, damages
or liabilities to which the Company, each of its directors, each of its
officers, and each person, if any, who controls the Company within the meaning
of the Act or the Exchange Act, or the Selling Shareholders may become subject,
under the Act or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the ADS Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the
ADS Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives or its agent expressly
for use therein; and will reimburse the Company and each Selling Shareholder for
any legal or other expenses reasonably incurred by the Company or the Selling
Shareholders in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel (in addition to any local counsel) or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without a written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment: (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
29
(e) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the ADSs. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the ADSs purchased under this Agreement (before
deducting expenses) received by the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the ADSs purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Shareholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling Shareholders and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the ADSs underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The obligations of the Company or the Selling Shareholders,
respectively, under this Section 8 shall be in addition to any liability that
the Company or the Selling
30
Shareholders, respectively, may otherwise have; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have.
(g) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company, the
Selling Shareholders and the other parties to this Agreement that are contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter or any
affiliate of any Underwriter, any Selling Shareholder or any person controlling
any Selling Shareholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Equity Shares or ADSs.
9. (a) If any Underwriter shall default in its obligation to purchase ADSs
which it has agreed to purchase hereunder at a Time of Delivery, the
Representatives may in its discretion arrange for the Representatives or another
party or other parties to purchase such ADSs on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such ADSs, then the Selling
Shareholders shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representatives to purchase such ADSs on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Company and
the Selling Shareholders that the Representatives have so arranged for the
purchase of such ADSs, or the Selling Shareholders notify the Representatives
that they have so arranged for the purchase of such ADSs, the Representatives or
the Selling Shareholders shall have the right to postpone such Time of Delivery
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the ADS
Registration Statement, the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement, the ADS Registration Statement or the Prospectus which
in the Representatives' may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of the
ADSs of a defaulting Underwriter or Underwriters by the Representatives and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all of the ADSs to be purchased at such Time of Delivery,
then the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of ADSs which such Underwriter
agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of ADSs which such Underwriter agreed to purchase hereunder) of the
ADSs of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
31
(c) If, after giving effect to any arrangements for the purchase of ADSs
of a defaulting Underwriter or Underwriters by the Representatives and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the ADSs to be purchased at such Time of Delivery, or if the
Selling Shareholders shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase ADSs of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Shareholders to sell the Optional ADSs) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Shareholders, except for the expenses to be borne by the Company,
the Selling Shareholders and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter, its directors, officers, employees or
agents, or any controlling person of any Underwriter, or the Company, or any of
the Selling Shareholders, or any officer or director or controlling person of
the Company or any controlling person of any Selling Shareholder, and shall
survive delivery of and payment for the ADSs.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but
if for any other reason any ADSs are not delivered by or on behalf of the
Selling Shareholders as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
ADSs not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the ADSs not so
delivered except as provided in Sections 6 and 8 hereof.
12. The Representatives may terminate this Agreement, by notice to the
Company and the Selling Shareholders, at any time at or prior to the First Time
of Delivery (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or India
or in the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in the United States, Indian or international
political, financial or economic conditions (including a declaration by the
United States or India of a national emergency or war) or currency exchange
rates or exchange controls, in each case the effect of which is such as to make
it, in the judgment of the Representatives,
32
impracticable or inadvisable to market the ADSs or to enforce contracts for the
purchase or sale of the Equity Shares or ADSs, or (iii) if trading in any
securities of the Company (including the Equity Shares or the ADSs) has been
suspended or materially limited by the Commission or the Indian Exchanges or the
Exchange, or if trading generally on the Indian Exchanges, the American Stock
Exchange, the New York Stock Exchange or the Exchange has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or India or with respect to Clearstream
or Euroclear systems in Europe, or (iv) if a banking moratorium has been
declared by either, Indian, United States Federal, United Kingdom or New York
authorities. Any termination pursuant to this Section 12 shall be without
liability on the part of (a) the Company or any Selling Shareholder to any
Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representatives and the Underwriters pursuant to Section 6
hereof, (b) any Underwriter to the Company or any Selling Shareholder, or (c) of
any party hereto to any other party except that the provisions of Sections 6 and
8 shall at all times be effective and shall survive such termination.
13. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly; and in all dealings
with any Selling Shareholder hereunder, the Representatives and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of such Selling Shareholder made or given by the Escrow
Agent, as Attorney-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the each of the Representatives c/o Goldman
Xxxxx(Asia) L.L.C., 68th Floor, Xxxxxx Xxxx Xxxxxx, 0 Xxxxxx Xxxx Xxxxxxx, Xxxx
Xxxx, Xxxxxxxxx: Xxxx X. Xxxxx, fax 000 0000 0000; x/x Xxxxxxx Xxxxx (Xxxx Xxxx)
Plc, Asia Pacific Finance Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxx: Xxxx Xxxxxx, fax 000 0000 0000; and c/o Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel, fax 000 000 0000; and if to the Company or any Selling Shareholder
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Chief
Financial Officer; with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx
Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq., fax
000 000 0000; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Shareholders by the Representatives upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders, and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, the directors, officers,
33
employees and agents of any Underwriter, and each person who controls the
Company, any Selling Shareholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the ADSs from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or any Selling Shareholder brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
and each Selling Shareholder has appointed CT Corporation System, New York, New
York, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. The Company and each
Selling Shareholder represents and warrants that the Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the party that has appointed it shall be deemed, in every respect, effective
service of process upon the Company and any Selling Shareholder, as the case may
be.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and the Selling
Shareholders and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
17. Time shall be of the essence of this Agreement.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
34
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with the Representatives' understanding,
please sign and return to us one original or counterpart hereof for each of the
Company, the Selling Shareholders and each of the Representatives of the
Underwriters plus one for each counsel and the Depositary, and upon the
acceptance hereof by the Representatives, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement
among each of the Underwriters, the Company and the Selling Shareholders. It is
understood that the Representatives' acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company and the Selling Shareholders for examination upon request, but without
warranty on the Representatives' part as to the authority of the signers
thereof.
Very truly yours,
Infosys Technologies Limited
By:
--------------------------------------------------
Name:
Title:
The Selling Shareholders
By:
--------------------------------------------------
Name:
Title: as Attorney-in-Fact for each of the
Selling Shareholders listed in the attached Schedule I
35
Accepted as of the date hereof:
Xxxxxxx Xxxxx (Asia) L.L.C.
By:
--------------------------------------------------
Name:
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
--------------------------------------------------
Name:
Title:
Citigroup Global Markets Inc.
By:
--------------------------------------------------
Name:
Title:
On behalf of each of the Underwriters
named in Schedule II hereto
36
SCHEDULE I
NUMBER OF OPTIONAL
CORRESPONDING NUMBER ADSS TO BE SOLD IF CORRESPONDING NUMBER
TOTAL NUMBER OF OF UNDERLYING EQUITY MAXIMUM OF UNDERLYING EQUITY
FIRM ADSS SHARES TO THE FIRM OPTION SHARES TO THE
SELLING SHAREHOLDERS(1) TO BE SOLD ADSS EXERCISED OPTIONAL ADSS
----------------------- ---------- ---- --------- -------------
Total:
----------
(1) Each Selling Shareholder has appointed the Escrow Agent as its
Attorney-in-Fact.
37
SCHEDULE II
NUMBER OF OPTIONAL ADSS
TOTAL NUMBER OF FIRM TO BE PURCHASED IF
ADSS MAXIMUM
UNDERWRITER TO BE PURCHASED OPTION EXERCISED
----------- --------------- ----------------
Total
38
