1
EXHIBIT 4.1
PBWT DRAFT - MARCH 23, 2000
DEPOSIT AGREEMENT
by and among
REDIFF.COM INDIA LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of __________, 2000
DEPOSIT AGREEMENT
2
DEPOSIT AGREEMENT, dated as of _________, 2000, by and among (i)
REDIFF.COM INDIA LIMITED, a public company with limited liability organized
under the laws of the Republic of India, and its successors (the "Company"),
(ii) CITIBANK, N.A., a national banking association organized under the laws of
the United States of America acting in its capacity as depositary, and any
successor depositary hereunder (the "Depositary"), and (iii) all Holders and
Beneficial Owners of American Depositary Shares evidenced by American Depositary
Receipts issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding equity
shares, each with a par value of Rs.2 per share (the "Shares"); and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares, in each case upon the terms and subject to the conditions set forth in
this Deposit Agreement; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions as are contemplated in this Deposit
Agreement; and
WHEREAS, American Depositary Shares issuable under the terms of this
Deposit Agreement are to be listed for trading on the NASDAQ National Market;
and
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved the establishment of an ADR facility upon
the terms set forth in this Deposit Agreement, the execution and delivery of
this Deposit Agreement on behalf of the Company, and the actions of the Company
and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1.
3
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1. "ADS Record Date" shall have the meaning given to such term
in Section 4.9.
Section 1.2. "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.3. "American Depositary Receipt(s)"; "Receipt(s)"; and
"ADR(s)" shall mean the certificate(s) issued by the Depositary in substantially
the form of Exhibit A hereto to evidence the American Depositary Shares issued
under the terms of this Deposit Agreement, as such Receipts may be amended from
time to time in accordance with the provisions of this Deposit Agreement. A
Receipt may evidence any number of American Depositary Shares and may, in the
case of American Depositary Shares held through a central depository such as
DTC, be in the form of a "Balance Certificate." Except as specifically provided
in this Deposit Agreement or the applicable American Depositary Receipt(s), the
terms Receipt(s), American Depositary Receipt(s) and ADR(s) include Restricted
ADR(s) issued under the terms of Section 2.12 of this Deposit Agreement.
Section 1.4. "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder to evidence such ADSs. As
of the date hereof, each American Depositary Share represents one (1) Share on
deposit with the Custodian (except as contemplated in Section 5.10 of the
Deposit Agreement). In the event of a distribution upon Deposited Securities
referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional American Depositary Shares are not
issued, each American Depositary Share shall represent the Deposited Securities
specified in such Sections. Except as specifically provided in this Deposit
Agreement or the applicable American Depositary Receipt(s), the term American
Depositary Share(s) includes Restricted ADS(s) issued under the terms of Section
2.12 of this Deposit Agreement.
The Company and the Depositary may at any time hereafter, subject to
applicable law and the terms of the Deposit Agreement, amend the ADS to Share
ratio, without, however, adversely affecting the rights of Holders under this
Deposit Agreement to withdraw the Deposited Securities represented by the
Holders' ADSs before the effective date of the amendment of the ADS to Share
ratio.
Section 1.5. "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6. "Beneficial Owners" shall mean, as to any ADS, any
person(s) having a beneficial interest deriving from the ownership of such ADS.
A Beneficial Owner of ADSs may or may not be the Holder of the ADR(s) evidencing
such ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner. Except as specifically
provided in this Deposit Agreement or the applicable American Depositary
Receipt(s), the term Beneficial Owner(s) shall include Beneficial Owner(s) of
Restricted ADSs.
Section 1.7. "Business Day" shall mean any day on which both the banks
in the Republic of India and the banks in New York are open for business.
Section 1.8. "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
4
Section 1.9. "Company" shall mean Rediff.com India Limited, a public
company with limited liability organized and existing under the laws of the
Republic of India, and its successors.
Section 1.10. "Custodian" shall mean, as of the date hereof, Citibank,
N.A. - Mumbai Branch, having its principal office at 81 Dr. Annie Besant Road,
Worli, Mumbai 400018, India, as the custodian for the purposes of this Deposit
Agreement, and any other entity that may be appointed by the Depositary pursuant
to the terms of Section 5.5 as successor, substitute or additional custodian
hereunder. The term "Custodian" shall mean any Custodian individually or all
Custodians collectively, as the context requires.
Section 1.11. "Deliver" and "Delivery" shall mean, when used in respect
of ADSs, Deposited Securities and Shares, either (i) the physical delivery of
the certificate(s) representing such securities, or (ii) the electronic delivery
of such securities by means of book-entry transfer, if available.
Section 1.12. "Deposit Agreement" shall mean this Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
Section 1.13. "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.14. "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities. Except as specifically
provided in this Deposit Agreement or the applicable Receipt(s), the term
Deposited Securities includes Restricted Shares deposited under the terms of
Section 2.12 of this Deposit Agreement.
Section 1.15. "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.16. "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.17. "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities, property and cash held
in DTC.
Section 1.18. "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.19. "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.20. "Full Entitlement ADR(s)," "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
Section 1.21. "Holder(s)" shall mean the person(s) in whose name(s) a
Receipt is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such person shall be deemed to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs evidenced by
such Receipt.
Section 1.22. "National Securities Depository Limited" and "NSDL" shall
mean the National Securities Depository Limited, which provides the book-entry
settlement system for equity securities in the Republic of India, or any
successor entity thereto.
5
Section 1.23. "Partial Entitlement ADR(s)," "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11.
Section 1.24. "Pre-Release Transaction" shall have the meaning set forth
in Section 5.10.
Section 1.25. "Principal Office", when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 111 Wall Street, New York,
New York 10043, U.S.A.
Section 1.26. "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances, transfers and
cancellations of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary and to
the Company accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
Section 1.27. "Restricted ADR(s)" and "Restricted ADS(s)" shall have the
meaning set forth in Section 2.12.
Section 1.28. "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company and are subject to resale limitations under the Securities Act or the
rules issued thereunder, or (iii) are subject to other restrictions on sale,
deposit or transfer under the laws of the United States, the Republic of India,
or under a shareholder agreement or the Articles of Association and Memorandum
of Association of the Company or under the regulations of any applicable
securities exchange unless, in each case, such Shares, Deposited Securities or
ADSs are being transferred or sold to persons other than an Affiliate of the
Company in a transaction (i) covered by an effective resale registration
statement, or (ii) exempt from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are
not, when held by such person(s), Restricted Securities.
Section 1.29. "Restricted Share(s)" shall have the meaning set forth in
Section 2.12.
Section 1.30. "Rupees" and "Rs." shall refer to the lawful currency of
the Republic of India.
Section 1.31. "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
Section 1.32. "Share Registrar" shall mean, as of the date hereof, the
Company and may after the date hereof be any depository institution organized
under the laws of the Republic of India appointed by the Company to carry out
the duties of registrar for the Shares or any successor as Share Registrar for
such Shares appointed by the Company.
Section 1.33. "Shares" shall mean the Company's equity shares, par value
Rs.2 per share, validly issued and outstanding and fully paid and may, if the
Depositary so agrees after consultation with the Company, include evidence of
the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
conversion or any other event described in Section 4.11 in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the maximum extent
permitted by law, represent the successor securities resulting from such change
in par value, split-up, consolidation, exchange,
6
conversion, reclassification or event. Except as specifically set forth
in this Deposit Agreement or the applicable American Depositary
Receipt(s), the term Share(s) includes Restricted Shares.
Section 1.34. "United States" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE 2.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in this Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms of this Deposit Agreement, shall be deemed for all
purposes to (a) be a party to and bound by the terms of this Deposit Agreement
and the applicable ADRs, and (b) appoint the Depositary its attorney-in-fact,
with full power to delegate, to act on its behalf and to take any and all
actions contemplated in this Deposit Agreement and the applicable ADRs, to adopt
any and all procedures necessary to comply with applicable law and to take such
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
Section 2.2. Form and Transferability of Receipts.
2.2.1. Form. ADSs shall be evidenced by definitive Receipts which shall
be engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. Receipts may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The Receipts
shall be substantially in the form set forth in Exhibit A to the Deposit
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in the Deposit Agreement or required by law.
Receipts shall be (i) dated, (ii) signed by the manual or facsimile signature of
a duly authorized signatory of the Depositary, (iii) countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary. The Receipts
shall bear a CUSIP number that is different from any CUSIP number that was, is
or may be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not Receipts issued hereunder.
2.2.2. Legends. The Receipts may, with the consent of the Company (which
consent shall not be unreasonably withheld) or at the request of the Company
(which shall not be unreasonably made), be endorsed with or have incorporated in
the text thereof such legends or recitals not inconsistent with the provisions
of the Deposit Agreement (i) as may be necessary to enable the Depositary or the
Company to perform their respective obligations hereunder, (ii) as may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date or
manner of issuance of the Deposited Securities or otherwise, or (iv) as may be
required by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and
7
conditions of the legends set forth, in the case of Holders, on the ADR
registered in the name of the applicable Holder or, in the case of Beneficial
Owners, on the ADR representing the ADSs owned by such Beneficial Owners.
2.2.3. Title. Subject to the limitations contained herein and in the
Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary and the Company may deem and treat the Holder of a
Receipt (that is, the person in whose name a Receipt is registered on the books
of the Depositary) as the absolute owner thereof for all purposes. Neither the
Company nor the Depositary shall have any obligation nor be subject to any
liability under this Deposit Agreement or any Receipt to any holder of a Receipt
or any beneficial owner unless such holder is the Holder of such Receipt or, in
the case of a beneficial owner, such beneficial owner or the Beneficial Owner's
representative is the Holder thereof.
2.2.4. Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the American Depositary Shares into DTC's book-entry
settlement system. A single ADR in the form of a "Balance Certificate" will
evidence all ADSs held through DTC and will be registered in the name of the
nominee for DTC (currently "Cede & Co.") and will provide that it represents the
aggregate amount of ADSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate amount of ADSs
represented thereby may from time to time be increased or decreased by making
adjustments on such records of the Depositary and of DTC or its nominee as
hereinafter provided. As such, the nominee for DTC will be the only "Holder" of
the ADR evidencing all ADSs held through DTC. Citibank, N.A. (or such other
entity as is appointed by DTC or its nominee) may hold the "Balance Certificate"
as custodian for DTC or its nominee. Each Beneficial Owner of ADSs held through
DTC must rely upon the procedures of DTC and the DTC Participants to exercise or
be entitled to any rights attributable to such ADSs. The DTC Participants shall
for all purposes be deemed to have all requisite power and authority to act on
behalf of the Beneficial Owners of the ADSs held in the DTC Participants'
respective accounts in DTC and the Depositary shall for all purposes be
authorized to rely upon any instructions and information given to it by DTC
Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are held
through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
Section 2.3. Deposit with Custodian. Subject to the terms and conditions
of this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares may be deposited by any person (including the Depositary in its
individual capacity but subject, however, in the case of the Company or any
Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not the
transfer books of the Company or the Share Registrar, if any, are closed, by
Delivery of the Shares to the Custodian, provided that Restricted Shares may be
deposited only upon the terms expressly permitted by Section 2.12 of the Deposit
Agreement. Every deposit of Shares shall be accompanied by the following: (A)
(i) in the case of Shares represented by certificates issued in registered form,
appropriate instruments of transfer or endorsement (including, if necessary,
fully executed and stamped instruments of transfer as required under the laws of
the Republic of India), in a form satisfactory to the Custodian, (ii) in the
case of Shares represented by certificates in bearer form, of the requisite
coupons and talons pertaining thereto, and (iii) in the case of Shares delivered
by book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause such Shares
to be so transferred, (B) such certifications and payments (including, without
limitation, the Depositary's fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be reasonably required by the Depositary or the
Custodian in accordance with the provisions of this Deposit Agreement and
applicable law, (C) if the Depositary so reasonably requires, a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person(s) stated in such order a Receipt or Receipts for the number of
American Depositary Shares representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in the Republic of
India, and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall
8
be satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities, except as
contemplated by Section 2.12, provided that the Company has restricted transfer
of such Shares to comply with any ownership restrictions referred to in Section
3.5 nor (b) any fractional Shares or fractional Deposited Securities nor (c) a
number of Shares or Deposited Securities which upon application of the ADS to
Shares ratio would give rise to fractional ADSs. No Shares shall be accepted for
deposit unless accompanied by evidence, if any is required by the Depositary,
that is reasonably satisfactory to the Depositary or the Custodian that all
conditions to such deposit have been satisfied by the person depositing such
Shares under the laws and regulations of the Republic of India and any necessary
approval has been granted by any governmental body in the Republic of India, if
any, which is then performing the function of the regulator of currency
exchange. Unless current applicable law changes, once withdrawn from the
depositary facility, the Deposited Securities may not be redeposited with the
Depositary under this Deposit Agreement. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
authorized by the Company to maintain ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished by the Company or any
such custodian, registrar, transfer agent, clearing agency or other entity
authorized by the Company to maintain ownership or transaction records in
respect of the Shares.
Section 2.4. Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or other Deposited Securities the deposit of
which would violate any provisions of the Articles of Association, Memorandum of
Association, or any shareholders' agreement of, the Company or applicable law.
Shares may not be deposited by persons located in India or residents of
India or by persons acting on behalf of such persons located in India or
residents of India, except for deposits of Shares by the Company on behalf of
persons located and residing outside India.
Section 2.5. Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii)
9
that such Deposited Securities have been recorded in the name of the Depositary,
the Custodian or a nominee of either on the shareholders' register maintained by
or on behalf of the Company or by the Share Registrar, if any, if registered
Shares have been deposited, or, if deposit is made by book-entry transfer,
confirmation of such transfer in the books of the NSDL, (iii) that all required
documents and approvals have been received, and (iv) the person(s) to whom or
upon whose order American Depositary Shares are deliverable in respect thereof
and the number of American Depositary Shares to be so delivered thereby. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement and
applicable law, shall issue the American Depositary Shares representing the
Shares so deposited to or upon the order of the person(s) named in the notice
delivered to the Depositary and shall execute and deliver at its Principal
Office Receipt(s) registered in the name(s) requested by such person(s) and
evidencing the aggregate number of American Depositary Shares to which such
person(s) are entitled, but only upon payment to the Depositary of the charges
of the Depositary for accepting a deposit, issuing American Depositary Shares
and executing and delivering such Receipt(s) (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the Receipt(s). The Depositary shall only issue American Depositary Shares in
whole numbers and deliver American Depositary Receipts evidencing whole numbers
of American Depositary Shares. Nothing herein shall prohibit any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6. Transfer, Combination and Split-up of Receipts.
2.6.1. Transfer. The Registrar shall register the transfer of Receipts
(and of the ADSs represented thereby) on the books maintained for such purpose
and the Depositary shall cancel such Receipts and execute new Receipts
evidencing the same aggregate number of ADSs as those evidenced by the Receipts
canceled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
the Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the surrendered Receipts have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Receipts have been duly stamped (if required by
the laws of the State of New York or of the United States, or any other
applicable law), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
2.6.2. Combination & Split Up. The Registrar shall register the split-up
or combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall cancel such Receipts and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the Receipts canceled by the
Depositary, shall cause the Registrar to countersign such new Receipts and shall
Deliver such new Receipts to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
2.6.3. Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes may be appointed by the Depositary. Each
co-transfer agent appointed under this Section 2.6 (other than the Depositary)
shall give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of the Deposit Agreement.
10
Section 2.7. Surrender of ADSs and Withdrawal of Deposited Securities.
Subject to applicable law, the Holder of ADSs shall be entitled to Delivery (at
the Custodian's designated office) to him or upon his order of the Deposited
Securities at the time represented by the ADS(s) upon satisfaction of each of
the following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and
if applicable, the Receipts evidencing such ADSs) for the purpose of withdrawal
of the Deposited Securities represented thereby, (ii) if so required by the
Depositary, the Receipts Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
and Exhibit B hereof) have been paid, subject, however, in each case, to the
terms and conditions of the Receipts evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association and Memorandum of
Association, of any applicable laws (including the rules of the Reserve Bank of
India), and to any provisions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) cancel the ADSs Delivered to it (and, if applicable, the
Receipts evidencing the ADSs so Delivered), (ii) direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) direct the Custodian to Deliver (without unreasonable delay)
at the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities (including, without limitation, stamped instruments of
transfer), or evidence of the electronic transfer thereof (if available), as the
case may be, to or upon the written order of the person(s) designated in the
order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, the Receipts
evidencing the ADSs so canceled, the Articles of Association and Memorandum of
Association of the Company, applicable laws, the rules of the Reserve Bank of
India, and to the terms and conditions of or governing the Deposited Securities,
in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than
11
securities) held by the Custodian in respect of the Deposited Securities
represented by such ADSs to the Depositary for delivery at the Principal Office
of the Depositary. Such direction shall be given by letter or, at the request,
risk and expense of such Holder, by cable, telex or facsimile transmission.
The Company and the Depositary have been advised that, as of the date
hereof, a stamp duty of 0.5 percent of the market value of the Shares will be
charged in respect of any withdrawal of Shares and such stamp duty will be
payable by the relevant Holder requesting the withdrawal of the Deposited
Securities. In addition, it will be necessary to obtain the approval of the
Reserve Bank of India for withdrawal of Deposited Securities or for the Company
to register Shares in the name of a person who is not a resident of the Republic
of India upon such withdrawal. Any subsequent transfer of the Deposited
Securities by the holder after withdrawal will require the approval of the
Reserve Bank of India, which approval must be obtained by the transferee and the
Company under Section 29(1)(b) and 19(4), respectively, of the Foreign Exchange
Regulation Act, 1973.
Section 2.8. Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
2.8.1. Additional Requirements. As a condition precedent to the
execution and delivery, registration, registration of issuance, transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in Section 5.9 and Exhibit B hereof, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matter contemplated by Section 3.1 hereof, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or American Depositary Shares or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of the
applicable Receipt, this Deposit Agreement and applicable law.
2.8.2. Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the Share
Registrar, if any, are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of this Deposit Agreement or the applicable
Receipt(s) or under any provision of, or governing, the Deposited Securities, or
because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8 hereof.
2.8.3. Regulatory Restrictions. Notwithstanding any provision of this
Deposit Agreement or any Receipt(s) to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
12
Section 2.9. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen
Receipt, in lieu of and in substitution for such destroyed, lost, or stolen
Receipt, after the Holder thereof (i) has submitted to the Depositary a written
request for such exchange and substitution before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser, (ii) has provided such
security or indemnity (including an indemnity bond) as may be required by the
Depositary to save it and any of its agents harmless, and (iii) has satisfied
any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
Section 2.10. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate).
Section 2.11. Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement Shares
which are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs/ADSs, on the one hand,
and (ii) the Full Entitlement ADRs/ADSs on the other. Holders and Beneficial
Owners of Partial Entitlement ADSs shall only be entitled to the entitlements of
Partial Entitlement Shares. Holders and Beneficial Owners of Full Entitlement
ADSs shall be entitled only to the entitlements of Full Entitlement Shares. All
provisions and conditions of this Deposit Agreement shall apply to Partial
Entitlement ADRs/ADSs to the same extent as Full Entitlement ADRs/ADSs, except
as contemplated by this Section 2.11. The Depositary is authorized to take any
and all other actions as may be necessary (including, without limitation, making
the necessary notations on Receipts) to give effect to the terms of this Section
2.11. The Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued are Partial Entitlement Shares and shall assist
the Depositary with the establishment of procedures enabling the identification
of Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.12. Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of one or more series of ADSs
representing such deposited Restricted Shares (such ADSs, the "Restricted ADSs,"
and the ADRs evidencing such Restricted ADSs, the "Restricted ADRs"). The
Company shall assist the Depositary in the establishment of such procedures and
agrees that it shall take all steps necessary and satisfactory to the Depositary
to ensure that the establishment of such procedures does not violate the
provisions of the Securities Act or any other applicable laws. The depositors of
such Restricted Shares and the Holders of the Restricted ADSs may be required
prior to the deposit of such Restricted Shares, the transfer of the Restricted
ADRs and the Restricted ADSs evidenced thereby or the withdrawal of the
Restricted Shares represented by Restricted ADSs to provide such written
certifications or agreements as the Depositary or the Company may require. The
Company shall provide to the Depositary in writing the legend(s) to be affixed
to the Restricted ADRs,
13
which legends shall (i) be in a form reasonably satisfactory to the Depositary
and (ii) contain the specific circumstances under which the Restricted ADRs and
the Restricted ADSs represented thereby may be transferred or the Restricted
Shares withdrawn. The Restricted ADSs issued upon the deposit of Restricted
Shares shall be separately identified on the books of the Depositary and the
Restricted Shares so deposited shall be held separate and distinct from the
other Deposited Securities held hereunder. The Restricted Shares and the
Restricted ADSs shall not be eligible for Pre-Release Transactions described in
Section 5.10. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by this Deposit Agreement and
(ii) an opinion of counsel reasonably satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is,
and the Restricted ADSs evidenced thereby are, transferable by the Holder
thereof under applicable securities laws and the transfer restrictions contained
in the legend set forth on the Restricted ADR presented for transfer. Except as
(i) set forth in this Section 2.12 and the applicable ADR and (ii) required by
applicable law, the Restricted ADRs and the Restricted ADSs evidenced thereby
shall be treated as ADRs and ADSs issued and outstanding under the terms of the
Deposit Agreement. In the event that the Company makes any distributions upon
Deposited Securities described in Article IV of this Deposit Agreement, the
Depositary shall (i) make the determinations contemplated in Article IV with
respect to the Restricted ADSs independently from the determination for ADSs
that are not Restricted ADSs and (ii) shall make distributions under Article IV
to Holders of Restricted ADSs only on the basis of the distributions received
from the Company in respect of the Restricted Shares corresponding to the
Restricted ADSs held by such Holders. In the event that, in determining the
rights and obligations of parties hereto with respect to any Restricted ADSs,
any conflict arises between (a) the terms of this Deposit Agreement (other than
this Section 2.12) and (b) the terms of (i) this Section 2.12 or (ii) the
applicable Restricted ADR, the terms and conditions set forth in this Section
2.12 and of the Restricted ADR shall be controlling and shall govern the rights
and obligations of the parties to this Deposit Agreement pertaining to the
deposited Restricted Shares, the Restricted ADSs and Restricted ADRs.
ARTICLE 3.
14
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSS
Section 3.1. Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depositary, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Company and the
Custodian such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval
and approval for deposit, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and regulations and the terms of
this Deposit Agreement, Receipt(s) and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under this Deposit Agreement
and the applicable Receipt(s). The Depositary and the Registrar, as applicable,
may withhold the execution or Delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof or, to the extent not limited by the terms of Section
7.8 hereof, the Delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's reasonable
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals (if necessary and appropriate) of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval or
approval for deposit which it receives from Holders and Beneficial Owners, and
(ii) any other information or documents which the Company may reasonably request
and which the Depositary shall request and receive from any Holder or Beneficial
Owner or any person presenting Shares for deposit or ADSs for cancellation and
withdrawal. Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or Beneficial Owners,
or (ii) verify or vouch for the accuracy of the information so provided by the
Holders or Beneficial Owners.
Section 3.2. Liability for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or American Depositary Shares shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the Depositary
may refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
the Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
Section 3.3. Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Except as contemplated by Section 2.12
of this Deposit Agreement, each such person shall also be deemed to represent
that Shares deposited by that person are not Restricted Securities, and that the
deposit of Shares or sale of ADSs by that person is not restricted, under the
Securities Act. Such representations and warranties shall survive the deposit
and withdrawal of Shares, the issuance and cancellation of American Depositary
Shares in respect thereof and the transfer of such American Depositary Shares.
If any such representations or warranties are false in any way, the Company and
the Depositary
15
shall be authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences thereof.
Section 3.4. Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement or any Receipt(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to the
rules and requirements of the Commission, the Securities and Exchange Board of
India, the Reserve Bank of India, and any stock exchange on which the Shares
are, or will be, registered, traded or listed, the Articles of Association and
Memorandum of Association of the Company, and any other laws, rules and
regulations which require notification to the Company of interests in Deposited
Securities, inter alia, as to certain acquisitions or depositions of Shares (or
Share equivalents), the capacity in which such Holder or Beneficial Owner owns
American Depositary Shares (and Shares as the case may be) and regarding the
identity of any other person(s) interested in such American Depositary Shares
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward, upon the request of the Company
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary.
Section 3.5. Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement or any Receipt, the Company may restrict transfers of
the Shares where the proposed transfer is in violation of applicable laws, rules
and regulations (including where such transfer might result in ownership of
Shares exceeding limits imposed by applicable law and regulations), or the
Articles of Association and Memorandum of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
the American Depositary Shares where the proposed transfer is in violation of
applicable laws, rules and regulations (including where such transfer may result
in the total number of Shares represented by the American Depositary Shares
beneficially owned by a single Holder or Beneficial Owner to exceed any such
limits). The Company may, in its sole discretion but subject to applicable law,
instruct the Depositary to take action with respect to the ownership interest of
any Holder or Beneficial Owner in excess of the limits set forth in the
preceding sentence, including, but not limited to, the imposition of
restrictions on the transfer of American Depositary Shares, the removal or
limitation of voting rights or mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the American Depositary
Shares held by such Holder or Beneficial Owner in excess of such limitations, if
and to the extent such disposition is permitted by applicable law and the
Articles of Association and Memorandum of Association of the Company.
ARTICLE 4.
16
THE DEPOSITED SECURITIES
Section 4.1. Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars on the terms described in Section 4.8, (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of American Depositary Shares held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority. Evidence of
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
Section 4.2. Distribution in Shares. If any distribution upon any
Deposited Securities consists of a free distribution of Shares, the Company
shall cause such Shares to be deposited with the Custodian and registered, as
the case may be, in the name of the Depositary, the Custodian or their
respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9 hereof, distribute to the Holders as of the ADS Record Date in proportion to
the number of American Depositary Shares held as of the ADS Record Date,
additional American Depositary Shares, which represent in the aggregate the
number of Shares received as such free distribution, subject to the other terms
of this Deposit Agreement (including, without limitation, payment of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary as set
forth in Exhibit B hereto and (b) taxes), or (ii) if additional American
Depositary Shares are not so distributed, each American Depositary Share issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interests in the additional integral
number of Shares distributed upon the Deposited Securities represented thereby
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional American Depositary
Shares, the Depositary shall sell the number of Shares or American Depositary
Shares, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms described in Section 4.1. In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligation under Section 5.7 hereof, has furnished an opinion of U.S.
counsel determining that Shares must be registered under the Securities Act or
other laws in order to be distributed to Holders (and no such registration
statement has been declared effective), the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of such (a) taxes and (b)
fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1. The Depositary shall
hold and/or distribute any unsold balance of such property in accordance with
the provisions of this Deposit Agreement.
Section 4.3. [INTENTIONALLY OMITTED].
Section 4.4. Distribution of Rights to Purchase Additional ADSs.
17
4.4.1. Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 60 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon timely receipt
of a notice indicating that the Company wishes such rights to be made available
to Holders of ADSs, the Depositary shall consult with the Company to determine,
and the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the Holders.
The Depositary shall make such rights available to Holders only if (i) the
Company shall have timely requested that such rights be made available to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied or if the Company requests that
the rights not be made available to Holders of ADSs, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b) below. In
the event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9) and
establish procedures to (x) distribute rights to purchase additional ADSs (by
means of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z)
to deliver ADSs upon the valid exercise of such rights. The Company shall assist
the Depositary to the extent necessary in establishing such procedures. Nothing
herein shall obligate the Depositary to make available to the Holders a method
to exercise rights to subscribe for Shares (rather than ADSs).
4.4.2. Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines that it
is not reasonably practicable to make the rights available to Holders, or (iii)
any rights made available are not exercised and appear to be about to lapse, the
Depositary shall, upon consultation with the Company, determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practical. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
upon the terms set forth in Section 4.1.
4.4.3. Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, or (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or exercise, or (iii) the content of
any materials forwarded to the Holders by the Company in connection with the
rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (and other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the
18
provisions of the Securities Act or any other applicable laws. The rights issued
by the Company may not be negotiable and, if negotiable, a liquid market for
rights may not exist. This may adversely affect (1) the ability of the
Depositary to dispose of such rights or (2) the amount the Depositary would
realize upon disposal of rights.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.5. Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
4.5.1. Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
4.5.2. Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
4.5.3. If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary
19
may dispose of such property for the account of Holders of ADSs in any way it
deems reasonably practicable under the circumstances.
Section 4.6. Distributions with Respect to Deposited Securities in
Bearer Form. Subject to the terms of this Article IV, distributions in respect
of Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7. Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 60 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of (i) such notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7, and only
if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. The Depositary
shall instruct the Custodian to present to the Company the Deposited Securities
in respect of which redemption rights are being exercised against payment of the
applicable redemption price. Upon receipt of confirmation from the Custodian
that the redemption has taken place and that funds representing the redemption
price have been received, the Depositary shall convert, transfer, and distribute
the proceeds (net of applicable (a) fees and charges of, and the expenses
incurred by, the Depositary and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof and the terms set forth in Section 4.1
hereof. If less than all outstanding Deposited Securities are redeemed, the ADSs
to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
Section 4.8 hereof and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section 4.8. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
20
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.9. Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date (the "ADS Record Date") for the determination
of the Holders of Receipts who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consent, to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in the Republic of India. Subject to applicable law
and the provisions of Section 4.1 through 4.8 and to the other terms and
conditions of this Deposit Agreement, only the Holders of Receipts at the close
of business in New York on such ADS Record Date shall be entitled to receive
such distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
Section 4.10. Voting of Deposited Securities.
4.10.1. ADS Voting Instructions. As soon as practicable after receipt of
notice of any meeting at which the holders of Deposited Securities are entitled
to vote, or of solicitation of consents or proxies from holders of Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of consent or proxy. The Depositary shall, if requested
by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy, (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of this Deposit Agreement, the Articles of
Association and Memorandum of Association of the Company and the provisions of
or governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs, (c) a brief statement as to the
manner in which such voting instructions may be given, and (d) summaries of any
materials and other documents provided by the Company for the purpose of
enabling such Holders to exercise such voting rights. Voting instructions may be
given only in respect of a number of ADSs representing an integral number of
Deposited Securities.
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date
of voting instructions in the manner specified by the Depositary, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of this Deposit Agreement, the Articles of Association and Memorandum
of Association of the Company and the provisions of the Deposited Securities, to
vote or cause the Custodian to vote the Shares and/or other Deposited Securities
(in person or by proxy) represented by such Holder's American Depositary Shares,
either (x) in the event of voting on a show of hands, in which case the
Depositary shall vote, or shall instruct the Custodian to vote, all Shares
and/or other Deposited Securities held under the terms hereof in accordance with
instructions received from Holders of a majority of the
21
American Depositary Shares for which voting instructions have been timely given
to the Depositary, or (y) in the event of voting on a poll, in which case the
Depositary shall vote, or shall instruct the Custodian to vote, the Shares
and/or other Deposited Securities in accordance with the voting instructions
timely received from the Holders giving instructions.
For the purpose of this Section 4.10, in the event that the Depositary
receives an express instruction from a Holder as of the ADS Record Date to
demand a poll with respect to any matter to be voted on by Holders of the
American Depositary Shares, the Depositary shall notify the Chairman of the
Company or a person designated by the Chairman of such instruction and request
the Chairman or such designee to demand a poll with respect to such matters. The
Company agrees that the Chairman or such designee will use their reasonable best
efforts to demand a poll at the meeting at which such matters are to be voted on
and to vote such Shares in accordance with the instructions of the Holders of
the American Depositary Shares.
The Depositary has been advised that under Indian law, as in effect as
of the date hereof, voting of Shares is by show of hands (in which case each
shareholder has one (1) vote regardless of the number of Shares owned) unless a
poll is validly demanded, and that a proxy holder may not vote except in a poll
vote. In addition, the Company's Articles of Association and Memorandum of
Association, as in effect as of the date hereof, provide that a poll may be
demanded at any general meeting by a holder or holders holding (a) at least 10%
of the total Shares entitled to vote on a resolution or (b) Shares with an
aggregate paid up capital of at least Rs.50,000. As a result, unless
specifically instructed by a Holder or Holders holding (a) at least 10% of the
total Shares (represented by such Holder(s)' American Depositary Shares)
entitled vote on a resolution or (b) Shares (represented by such Holder(s)'
American Depositary Shares) with an aggregate paid-up capital of at least
Rs.50,000, the Chairman of the Company or his designee may not be able to demand
a poll at the instruction of Holders. The Company's Articles of Association and
Memorandum of Association (as in effect on the date hereof) further provide that
the Chairman of the Company shall cast the deciding vote, in the event of a tie.
(b) Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of for purposes of establishing a quorum or otherwise, Deposited
Securities represented by ADSs except (a) pursuant to and in accordance with the
voting instructions timely received from Holders or (b) as otherwise
contemplated herein in the event of voting by show of hands. If the Depositary
timely receives from a Holder voting instructions which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be voted.
Notwithstanding anything else contained in this Deposit Agreement, the
Depositary shall not have any obligation to take any action with respect to any
meeting, or solicitation of consents or proxies, of holders of Deposited
Securities if the taking of such action would violate U.S. laws. The Company
agrees to take any and all actions reasonably necessary to enable Holders
22
and Beneficial Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. The Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of an opinion of counsel to the
Company reasonably satisfactory to the Depositary that such distributions are
not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of Company's counsel reasonably satisfactory to the Depositary that such
action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities upon
an averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
Section 4.12. Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549.
Section 4.13. Reports. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The Depositary shall
also provide to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
Section 4.14. List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15. List of Restricted Securities Owners. Upon each issuance
by the Company of any securities that are Restricted Securities, the Company
shall (1) advise in writing each person to whom Restricted
23
Securities are issued that such Restricted Securities are not eligible for
deposit hereunder (except, to the extent applicable, as contemplated by Section
2.12 hereof) and (ii) obtain from each such person, to the extent possible, a
written undertaking that such person will not deposit such Restricted Securities
(or any securities obtained upon conversion of such Restricted Securities)
hereunder so long as such securities constitute "Restricted Securities" and will
use reasonable endeavors to obtain from their respective transferees a similar
undertaking.
Section 4.16. Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (or shall cause such agent to) remit promptly to
the Depositary information about such taxes or governmental charges withheld or
paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable. Neither the Depositary nor the Custodian shall be
liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis non-U.S. tax paid against such Holder's or Beneficial
Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
24
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1. Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of Receipts, and the
surrender of Receipts for the purpose of withdrawal of Deposited Securities in
accordance with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary which
shall notify the Company of such removal or appointment of a Registrar or
co-registrar.
Section 5.2. Exoneration. Neither the Depositary nor the Company shall
be obligated to do or perform any act which is inconsistent with the provisions
of this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
the Republic of India or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future of the Articles of Association and Memorandum of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Articles of Association and Memorandum of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
25
The Depositary, its controlling persons, its agents, any Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3. Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
26
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof), or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.08 and 5.09),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5. The Custodian. The Depositary has initially appointed
Citibank, N.A. - Mumbai Branch as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Securities and no other Custodian has previously been
appointed hereunder, the Depositary shall promptly appoint a substitute
custodian that is organized under the laws of the Republic of India. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may appoint
an additional custodian with respect to any Deposited Securities, or discharge
the Custodian with respect to any Deposited Securities and appoint, upon notice
to the Company, a substitute custodian, which shall thereafter be Custodian
hereunder with respect to the Deposited Securities. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all Holders of
Receipts, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
27
Section 5.6. Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association and Memorandum of
Association of the Company that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual and
semi-annual reports prepared in accordance with the applicable requirements of
the Commission. The Depositary shall arrange, at the request of the Company and
at the Company's expense, to provide copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the Company's Articles
of Association and Memorandum of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement. The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
Section 5.7. Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of, or self-tender for,
or repurchase of, Deposited Securities, (vii) a meeting of holders of Deposited
Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger or consolidation or transfer of assets,
or (viii) any reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets which affects the Deposited Securities, it will
obtain U.S. legal advice and take all steps necessary to ensure that the
application of the proposed transaction to Holders and Beneficial Owners does
not violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act or the securities laws of the states of the
United States). In support of the foregoing, the Company will furnish to the
Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (1) requires a registration statement under the Securities
Act to be in effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of the Republic of India counsel stating that
(1) making the transaction available to Holders and Beneficial Owners does not
violate the laws or regulations of the Republic of India and (2) all requisite
regulatory consents and approvals have been obtained in the Republic of India.
If the filing of a registration statement is required, the Depositary shall not
have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement
has been declared effective. If, being advised by
28
counsel, the Company determines that a transaction is required to be
registered under the Securities Act, the Company will either (i)
register such transaction to the extent necessary, (ii) alter the terms
of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures,
in each case as contemplated in this Deposit Agreement, to prevent such
transaction from violating the registration requirements of the
Securities Act. The Company agrees with the Depositary that neither the
Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or
upon a sale of Shares or other Deposited Securities previously issued
and reacquired by the Company or by any such Affiliate, or (ii) issue
additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for
such securities, unless such transaction and the securities issuable in
such transaction are exempt from registration under the Securities Act
and, if applicable, the Exchange Act or have been registered under the
Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8. Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary under the terms hereof due to the negligence or bad faith of
the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as the
case may be, (b) out of or as a result of any offering documents in respect
thereof issued by, or with the approval of, the Company, or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the Receipts, the ADSs, the Shares, or
any Deposited Securities, in any such case (i) by the Depositary, the Custodian
or any of their respective directors, officers, employees, agents and Affiliates
under the terms of this Deposit Agreement, except to the extent such loss,
liability, tax, charge or expense is due to the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and Affiliates.
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give
29
rise to an indemnity hereunder, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim that may give rise to an indemnity hereunder without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
Section 5.9. Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities, as the case may be, shall
be required to pay to the Depositary the Depositary's fees and related charges
identified as payable by them respectively in the Fee Schedule attached hereto
as Exhibit B. All fees and charges so payable may, at any time and from time to
time, be changed by agreement between the Depositary and the Company, but, in
the case of fees and charges payable by Holders and Beneficial Owners, only in
the manner contemplated in Section 6.1. The Depositary shall provide, without
charge, a copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10. Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf and on behalf of their clients, may own and deal in
any class of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may, except in the case of Restricted ADSs, (i)
issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and (ii)
deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in
30
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
Section 5.11. Restricted Securities Owners. The Company agrees to advise
in writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit such
Restricted Securities hereunder.
ARTICLE 6.
AMENDMENT AND TERMINATION
Section 6.1. Amendment/Supplement. Subject to the terms and conditions
of this Section 6.1 and applicable law, the Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Share(s) to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share(s), to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement and the Receipt as amended and supplemented thereby. In no event shall
any amendment or supplement impair the right of the Holder to surrender such
Receipt and receive therefor the Deposited Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment or supplement of the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Receipts at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and the Receipts in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
Section 6.2. Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by providing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by providing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of a Receipt will, upon
surrender of such Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of Receipts referred
to in Section 2.7 and subject to the conditions and restrictions therein set
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to Delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of this Deposit Agreement, the Registrar
thereafter shall discontinue the registration of transfers of Receipts, and the
31
Depositary shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.7, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
with respect to the Receipts, the Deposited Securities and the American
Depositary Shares, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE 7.
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2. No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, or (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
Section 7.3. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4. Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
32
Section 7.5. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Mahalaxmi
Engineering Estate, 1st Floor, L.J. First Cross Road, Mahim (West), Mumbai 400
016, India, Attention: Mr. Ajit Balakrishnan, or to any other address which the
Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter personally delivered
or sent by mail or air courier, addressed to Citibank, N.A., 111 Wall Street,
New York, New York 10043, U.S.A., Attention: Depositary Receipts Department, or
to any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of this Deposit Agreement,
by means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6. Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited Securities and
the obligations and duties of the Company in respect of the holders of Shares
and other Deposited Securities, as such, shall be governed by the laws of the
Republic of India (or, if applicable, such other laws as may govern the
Deposited Securities).
33
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 111 Eighth Avenue, New York, New York 10011, telephone number
(212) 590-9200 as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph of
this Section 7.6. If for any reason the Agent shall cease to be available to act
as such, the Company agrees to designate a new agent in New York on the terms
and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or
34
proceeding, from setoff or counterclaim, from the jurisdiction of any court,
from service of process, from attachment upon or prior to judgment, from
attachment in aid of execution or judgment, from execution of judgment, or from
any other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, and consents to such relief and enforcement against
it, its assets and its revenues in any jurisdiction, in each case with respect
to any matter arising out of, or in connection with, the Deposit Agreement, any
Receipt or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7. Assignment. Subject to the provisions of Section 5.4
hereof, this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9. Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
IN WITNESS WHEREOF, REDIFF.COM INDIA LIMITED and CITIBANK, N.A. have
duly executed this Deposit Agreement as of the day and year first above set
forth and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued in
accordance with the terms hereof, or upon acquisition of any beneficial interest
therein.
REDIFF.COM INDIA LIMITED
By:
---------------------------------
Name:
Title:
35
CITIBANK, N.A.
By:
---------------------------------
Name:
Title:
36
EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER: ________
American Depositary Shares
(each American Depositary
Share representing one (1)
equity share, par value Rs.2
per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED EQUITY SHARES
of
REDIFF.COM INDIA LIMITED
(a public company with limited liability organized under the laws of the
Republic of India)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited equity
shares, each of par value of Rs.2 per share, including evidence of rights to
receive such equity shares (the "Shares"), of REDIFF.COM INDIA LIMITED, a public
company with limited liability organized under the laws of the Republic of India
(the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents one (1) Share deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank, N.A. - Mumbai Branch (the "Custodian"). The ratio of
American Depositary Shares to Shares is subject to amendment as provided in the
Deposit Agreement. The Depositary's Principal Office is located at 111 Wall
Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
__________, 2000 (as amended from
37
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of American
Depositary Shares ("ADSs") evidenced by Receipts issued thereunder, each of whom
by accepting an ADS (or an interest therein) agrees to become a party thereto
and becomes bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners of
Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time received in respect of such Shares and held thereunder (such
Shares, securities, property and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association and Memorandum of Association of the Company (as in effect on the
date of the signing of the Deposit Agreement) and are qualified by and subject
to the detailed provisions of the Deposit Agreement and the Articles of
Association and Memorandum of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
Subject to applicable law, the Holder of this Receipt (and of the ADSs
evidenced hereby) shall be entitled to Delivery (at the Custodian's designated
office) to him or upon his order of the Deposited Securities at the time
represented by the ADS(s) evidenced hereby upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this Receipt) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, this Receipt has been properly endorsed in blank or is
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and delivered
to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B to
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this Receipt, of the Deposit Agreement, of the Company's
Articles of Association and Memorandum of Association, of any applicable laws
(including the rules of the Reserve Bank of India), and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof. Unless Indian law, as in effect as of the date of the Deposit
Agreement, changes, once withdrawn from the depositary facility, Shares may not
be redeposited with the Depositary under the Deposit Agreement.
38
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) direct the Custodian to Deliver (without unreasonable delay)
at the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities (including, without limitation, stamped instruments of
transfer), or evidence of the electronic transfer thereof (if available), as the
case may be, to or upon the written order of the person(s) designated in the
order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, of this Receipt, of
the Articles of Association and Memorandum of Association of the Company,
applicable laws, the rules of the Reserve Bank of India, and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of Delivery of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of the Depositary of (i) any cash dividends or
cash distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder so surrendering ADSs, represented by
this Receipt, and for the account of such Holder, the Depositary shall direct
the Custodian to forward (to the extent permitted by law) any cash or other
property (other than securities) held by the Custodian in respect of the
Deposited Securities represented by such ADSs to the Depositary for delivery at
the Principal Office of the Depositary. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
The Company and the Depositary have been advised that, as of the date of
the Deposit Agreement, a stamp duty of 0.5 percent of the market value of the
Shares will be charged in respect of any withdrawal of Shares and such stamp
duty will be payable by the relevant Holder requesting the withdrawal of the
Deposited Securities. In addition, it will be necessary to obtain the approval
of the Reserve Bank of India for withdrawal of Deposited Securities or for the
Company to register Shares in the name of a person who is not a resident of the
Republic of India upon such withdrawal. Any subsequent transfer of the Deposited
Securities by the holder after withdrawal will require the approval of the
Reserve Bank of India, which approval must be obtained by the transferee and the
Company under Section 29(1)(b) and 19(4), respectively, of the Foreign Exchange
Regulation Act, 1973.
39
(3) Transfer, Combination and Split-Up of Receipts. The Registrar shall
register the transfer of this Receipt (and of the ADSs represented hereby) on
the books maintained for such purpose and the Depositary shall cancel this
Receipt and execute new Receipts evidencing the same aggregate number of ADSs as
those evidenced by this Receipt when canceled, shall cause the Registrar to
countersign such new Receipts and shall Deliver such new Receipts to or upon the
order of the person entitled thereto, if each of the following conditions has
been satisfied: (i) this Receipt has been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) this Receipt has
been properly endorsed or is accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) this Receipt has been duly stamped (if required by the laws of
the State of New York or of the United States, or any other applicable law), and
(iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B to the Deposit Agreement) have been paid, subject,
however, in each case, to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
The Registrar shall register the split-up or combination of this Receipt
(and of the ADSs represented hereby) on the books maintained for such purpose
and the Depositary shall cancel this Receipt and execute new Receipts for the
number of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by this Receipt when canceled by the Depositary, shall cause the
Registrar to countersign such new Receipts and shall Deliver such new Receipts
to or upon the order of the Holder thereof, if each of the following conditions
has been satisfied: (i) this Receipt has been duly Delivered by the Holder (or
by a duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a split-up or combination hereof, and (ii)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and government charges (as are set forth in Section 5.9 and
Exhibit B to the Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this Receipt, of the Deposit Agreement and
of applicable law, in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters contemplated in the Deposit Agreement, and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this Receipt, the Deposit
Agreement and applicable law.
40
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Company, the Depositary, a Registrar or the Share Registrar, are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this Receipt, or under any provision of,
or governing, the Deposited Securities, or because of a meeting of shareholders
of the Company or for any other reason, subject in all cases to Article (24)
hereof. Notwithstanding any provision of the Deposit Agreement or this Receipt
to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw
the Deposited Securities at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the rules and requirements of the Commission, the Securities
and Exchange Board of India, Reserve Bank of India, and of any stock exchange on
which Shares are, or will be registered, traded or listed, the Articles of
Association and Memorandum of Association of the Company and any other laws,
rules and regulations, which require notification to the Company of interest in
Deposited Securities, inter alia, as to certain acquisitions or dispositions of
shares (or share equivalents), the capacity in which such Holder or Beneficial
Owner owns ADSs (and Shares, as the case may be) and regarding the identity of
any other person(s) interested in such ADSs and the nature of such interest and
various other matters, whether or not they are Holders and/or Beneficial Owners
at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares where the proposed transfer is in violation of applicable laws, rules and
regulations (including where such transfer might result in ownership of Shares
exceeding limits imposed under applicable laws and regulations), or the Articles
of Association and Memorandum of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
the proposed transfer is in violation of applicable laws, rules and regulations
(including where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits). The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including but not limited to, the imposition of
restrictions on the transfer of
41
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association and Memorandum of Association of the
Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to this ADR or any Deposited Securities
or ADSs evidenced hereby shall be payable by the Holders and Beneficial Owners
to the Depositary. The Company, the Custodian and/or Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner hereof remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer, split-up or combination of
ADRs and (subject to Article (24) hereof) the withdrawal of Deposited Securities
until payment in full of such tax, charge, penalty or interest is received.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities, and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Except as contemplated by Section 2.12
of the Deposit Agreement, each such person shall also be deemed to represent
that Shares deposited by that person are not Restricted Securities, and that the
deposit of Shares or sale of ADSs by that person is not restricted, under the
Securities Act. Such representations and warranties shall survive the deposit of
Shares and issuance of ADSs in respect thereof. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Company or the Depositary, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Company and the
Custodian such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval
and approval for deposit, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and regulations and the terms of the
Deposit Agreement and the
42
provisions of, or governing, the Deposited Securities, to execute such
certifications and to make such representations and warranties, and to provide
such other information or documentation (or, in the case of Shares in registered
form presented for deposit, such information relating to the registration of
Shares on the books of the Company or of the appointed agent of the Company for
the registration and transfer of Shares) as the Depositary or the Custodian may
deem reasonably necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement. The Depositary and the Registrar, as applicable, may withhold
the execution or Delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or, to the extent not limited by Article 24 hereof, the
Delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed, or such representations are made or
such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's reasonable satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the
deposit of Shares, a fee not in excess of U.S. $5.00
per 100 ADSs (or portion thereof) so issued under the
terms of the Deposit Agreement (excluding issuances
pursuant to paragraphs (iii) and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in
excess of U.S. $5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S.
$2.00 per 100 ADSs (or portion thereof) held for the
distribution of cash dividends or other cash
distributions (i.e. upon the sale of rights and other
entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of
U.S. $5.00 per 100 ADSs (or portion thereof) issued
upon the distribution of ADSs pursuant to (a) a stock
dividend, stock split or other free distribution of
stock or (b) the exercise of rights; and
(v) to any person presenting an ADR for transfer, U.S.
$1.50 per certificate presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing
Shares for deposit and persons surrendering ADSs for cancellation and withdrawal
of Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties)
and other governmental charges;
(ii) such registration fees as may from time to time be in
effect for the registration of Shares or other
Deposited Securities on the share register
43
and applicable to transfers of Shares or other
Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary
in the conversion of foreign currency;
(v) such fees and expenses as are incurred by the
Depositary in connection with compliance with
exchange control regulations and other regulatory
requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary) as the absolute owner thereof for all purposes. Neither
the Company nor the Depositary shall have any obligation nor be subject to any
liability under the Deposit Agreement or this Receipt to any holder of this
Receipt or any Beneficial Owner unless such holder is the registered Holder of
this Receipt or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the registered Holder thereof.
(12) Validity of Receipt. The Holder(s) of this Receipt (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
44
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Article (24)
hereof.
Dated: CITIBANK, N.A.,
----------------------------- as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By:
---------------------------------
Authorized Signatory
By:
--------------------------------
Authorized Signatory
The address of the Principal Office of the Depositary is 111 Wall Street, New
York, New York 10043, U.S.A.
45
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary be converted such
dividend, distribution or proceeds into Dollars upon the terms of the Deposit
Agreement on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted), (ii) if applicable, establish the
ADS Record Date upon the terms described in Section 4.9 of the Deposit
Agreement, and (iii) distribute the amount thus received (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary as provided in the
Deposit Agreement and (b) taxes withheld) to the Holders entitled thereto as of
the ADS Record Date in proportion to the number of ADS held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs then outstanding.
If the Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
If any distribution upon any Deposited Securities consists of a free
distribution of Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such free distribution, subject to the terms of the Deposit Agreement
(including, without limitation, payment of (a) the applicable fees and charges
of, and expenses incurred by, the Depositary as provided in the Deposit
Agreement and (b) taxes), or (ii) if additional ADSs are not so distributed,
each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net (a) of the applicable fees and charges of, and the
expenses incurred by, the Depositary, as provided in the Deposit Agreement and
(b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares or ADSs, as the case may be, represented
46
by the aggregate of such fractions and distribute the net proceeds upon the
terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of such (a) taxes
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied or if the Company requests
that the rights not be made available to Holders of ADSs, the Depositary shall
sell the rights as described below. In the event all conditions set forth above
are satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary as provided in the Deposit Agreement and (b) taxes), and (z) to
deliver ADSs upon the valid exercise of such rights. The Company shall assist
the Depositary to the extent necessary in establishing such procedures. Nothing
herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or if the Company requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines that it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practical. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the
47
rights upon the terms described above, the Depositary shall allow such rights to
lapse. The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful and practicable to make such rights available to Holders
in general or any Holders in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale or exercise, or (iii) the content of
any materials forwarded to the ADR Holders by the Company in connection with the
rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (and other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case reasonably satisfactory to the Depositary, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws. In the event that the Company, the Depositary or
the Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders of ADSs
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges. The rights issued by the Company may not be
negotiable, and if negotiable, a liquid market for rights may not exist. This
may adversely affect (1) the ability of the Depositary to dispose of such rights
or (2) the amount the Depositary would realize upon disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner
48
as the Depositary may deem practicable for accomplishing such distribution (i)
upon receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall, (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary as
provided in the Deposit Agreement , and (b) taxes) to the Holders as of the ADS
Record Date upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of Holders of ADSs in any way it deems reasonably
practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and satisfactory documentation as contemplated by the Deposit
Agreement, and upon determining that such proposed redemption is practicable,
the Depositary shall (to the extent practicable) provide to each Holder a notice
setting forth the Company's intention to exercise the redemption rights and any
other particulars set forth in the Company's notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company the Deposited
Securities in respect of which redemption rights are being exercised against
payment of the applicable redemption price. Upon receipt of confirmation that
the redemption has taken place and that funds representing the redemption price
have been received, the Depositary shall convert, transfer, distribute the
proceeds (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary as provided in the Deposit Agreement, and (b) taxes), retire ADSs
and cancel ADRs upon delivery of such ADSs by Holders thereof upon the terms of
the Deposit Agreement. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as may be determined by the Depositary. The redemption price per ADS shall be
the dollar equivalent of per share amount received by the Depositary upon the
redemption of the Deposited Securities represented by American Depositary Shares
(subject to the terms of the Deposit Agreement and the applicable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by
the number of Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date
49
("ADS Record Date") for the determination of the Holders of Receipts who shall
be entitled to receive such distribution, to give instructions for the exercise
of voting rights at any such meeting, to give or withhold such consent, to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each ADS. The Depositary shall make reasonable efforts to establish the ADS
Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in the Republic of India.
Subject to applicable law and the terms and conditions of this Receipt and the
Deposit Agreement, only the Holders of Receipts at the close of business in New
York on such ADS Record Date shall be entitled to receive such distributions, to
give such instructions, to receive such notice or solicitation, or otherwise
take action.
(17) Voting of Deposited Securities.
7.9.1. ADS Voting Instructions. As soon as practicable after receipt of
notice of any meeting at which the holders of Deposited Securities are entitled
to vote, or of solicitation of consents or proxies from holders of Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall, if
requested in writing in a timely manner by the Company (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders: (a) such notice of meeting or solicitation of
consent or proxy, (b) a statement that the Holders as of the ADS Record Date
will be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company's Articles of Association and Memorandum of Association
and the provisions of or governing Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs, (c) a brief statement as
to the manner in which such voting instructions may be given, and (d) summaries
of any materials and other documents provided by the Company for the purpose of
enabling such Holders to exercise such voting rights. Voting instructions may be
given only in respect of a number of ADSs representing an integral number of
Deposited Securities. Upon the timely receipt of voting instructions from a
Holder of ADSs as of the ADS Record Date in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of the Deposit Agreement, the provisions of
the Articles of Association and Memorandum of Association of the Company and the
provisions of the Deposited Securities, to vote or cause the Custodian to vote
the Shares and/or other Deposited Securities represented by ADSs held by such
Holder, either (x) in the event of voting on a show of hands, in which case the
Depositary shall vote, or shall instruct the Custodian to vote, all Shares
and/or other Deposited Securities held under the terms of the Deposit Agreement
in accordance with instructions timely received from Holders of a majority of
the American Depositary Shares for which instructions have been given to the
Depositary, or (y) in the event of voting on a poll, in which case the
Depositary shall vote, or shall instruct the Custodian to vote, the Shares
and/or Deposited Securities in accordance with the instructions timely received
from the Holders giving instructions.
For the purpose of this Receipt and the Deposit Agreement, in the event
that the Depositary receives an express instruction from a Holder as of the ADS
Record Date to demand a poll with respect to any matter to be voted on by
Holders of the American Depositary Shares, the Depositary shall notify the
Chairman of the Company or a person designated by the Chairman of such
instruction and request the Chairman of the Company or such designee to demand a
poll with respect to such matters. The Company agrees that the Chairman of the
Company or such designee will make their reasonable best efforts to demand a
poll at the meeting at which such matters are to be voted on and to vote such
Shares in accordance with the instructions of the Holders of the American
Depositary Shares.
50
The Depositary has been advised that under Indian law, as in effect as
of the date of the Deposit Agreement, voting of Shares is by show of hands (in
which case each shareholder has one (1) vote regardless of the number of Shares
owned) unless a poll is validly demanded and a proxy holder may not vote except
in a poll vote. In addition, the Company's Articles of Association and
Memorandum of Association, as in effect as of the date hereof, provide that a
poll may be demanded at any general meeting by a holder or holders holding (a)
at least 10% of the total Shares entitled to vote on a resolution or (b) Shares
with an aggregate paid up capital of at least Rs.50,000. As a result, unless
specifically instructed by a Holder or Holders holding (a) at least 10% of the
total Shares (represented by such Holder(s)' American Depositary Shares)
entitled vote on a resolution or (b) Shares (represented by such Holder(s)'
American Depositary Shares) with an aggregate paid-up capital of at least
Rs.50,000, the Chairman of the Company or his designee may not be able to demand
a poll at the instruction of Holders. The Company's Articles of Association and
Memorandum of Association (as in effect on the date hereof) further provide that
the Chairman shall cast the deciding vote, in the event of a tie.
(b) Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of for purposes of establishing a quorum or otherwise, Deposited
Securities represented by ADSs except (a) pursuant to and in accordance with the
voting instructions timely received from Holders, or (b) as otherwise
contemplated herein in the event of voting by show of hands. If the Depositary
timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such instructions.
Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be voted.
Notwithstanding anything else contained in the Deposit Agreement or this
Receipt, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation or consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the
51
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of satisfactory documentation contemplated by the Deposit Agreement,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in this
Exhibit A to the Deposit Agreement, specifically describing such new Deposited
Securities or corporate change. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, with the Company's approval, and shall if the Company
requests, subject to receipt of satisfactory legal documentation contemplated in
the Deposit Agreement, sell such securities at public or private sale, at such
place or places and upon such terms as it may deem proper and may allocate the
net proceeds of such sales (net of (a) fees and charges of, and expenses
incurred by, the Depositary as provided in the Deposit Agreement and (b) taxes)
for the account of the Holders otherwise entitled to such securities and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Holders in general or
any Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, the Republic of India or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future of the Articles of Association and
Memorandum of Association of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association and Memorandum of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in good faith reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for any inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of ADS or (v) for any consequential
or punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
52
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no obligation
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Article (23) hereof), or (ii) the appointment
by the Company of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time be removed
by the Company by written notice of such removal which notice shall be effective
on the earlier of (i) the 60th day after delivery thereof to the Depositary
(whereupon the Depositary shall be entitled to take the actions contemplated in
Article (23) hereof), or (ii) upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in the Deposit Agreement). The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and
53
such other information relating to Receipts and Holders thereof as the successor
may reasonably request. Any such successor depositary shall promptly notify
Holders of its appointment. Any corporation into or with which the Depositary
may be merged or consolidated shall be the successor of the Depositary without
the execution or filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, any provisions of this
Receipt or the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit
54
Agreement, the Holder will, upon surrender of such Holders' Receipt(s) at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of ADSs referred to in Article (2) hereof and in
the Deposit Agreement and subject to the conditions and restrictions therein set
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to Delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, the Deposited Securities and the
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf and on behalf of their clients,
may own and deal in any class of securities of the Company and its Affiliates
and in ADSs. The Depositary may issue ADSs against evidence of rights to receive
Shares from the Company, any agent of the Company or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares. In its
capacity as Depositary, the Depositary shall not lend Shares or
55
ADSs; provided, however, that the Depositary may, except in the case of
Restricted ADSs, (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
56
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name:
-----------------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument
in every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian,
the person executing the endorsement must give
his/her full title in such capacity and proper
evidence of authority to act in such capacity,
if not on file with the Depositary, must be
forwarded with this Receipt.
- --------------------------
SIGNATURE GUARANTEED All endorsements or assignments of
Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
LEGENDS
[THE RECEIPTS ISSUED IN RESPECT OF PARTIAL ENTITLEMENT AMERICAN
DEPOSITARY SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF
THE RECEIPT: "THIS
57
RECEIPT EVIDENCES AMERICAN DEPOSITARY SHARES REPRESENTING
PARTIAL ENTITLEMENT' EQUITY SHARES, PAR VALUE RS.2 PER SHARE
("SHARES"), OF REDIFF.COM INDIA LIMITED AND AS SUCH DO NOT
ENTITLE THE HOLDERS THEREOF TO THE SAME PER-SHARE ENTITLEMENT AS
OTHER SHARES (WHICH ARE "FULL ENTITLEMENT" SHARES) ISSUED AND
OUTSTANDING AT SUCH TIME. THE AMERICAN DEPOSITARY SHARES
REPRESENTED BY THIS RECEIPT SHALL ENTITLE HOLDERS TO
DISTRIBUTIONS AND ENTITLEMENTS IDENTICAL TO OTHER AMERICAN
DEPOSITARY SHARES WHEN THE SHARES REPRESENTED BY SUCH AMERICAN
DEPOSITARY SHARES BECOME "FULL ENTITLEMENT" SHARES.]
[THIS CERTIFICATE REPRESENTS "RESTRICTED ADSS" ISSUED UPON THE
TERMS OF SECTION 2.12 OF THE DEPOSIT AGREEMENT (AS HEREINAFTER
DEFINED). THIS CERTIFICATE AND THE RESTRICTED ADSS REPRESENTED
HEREBY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE FOR SUCH SALE OR
TRANSFER.]
58
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have
the meaning given to such terms in the Deposit Agreement.
I. DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
- ---------------------------------------- ------------------------------------- -------------------------------------
SERVICE RATE BY WHOM PAID
- ---------------------------------------- ------------------------------------- -------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding issuances fraction thereof) issued. or party receiving ADSs.
contemplated by paragraph (4) below).
- ---------------------------------------- ------------------------------------- -------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and cash fraction thereof) surrendered. withdrawal.
against surrender of ADSs.
- ---------------------------------------- ------------------------------------- -------------------------------------
(3) Distribution of cash dividends Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
or other cash distributions fraction thereof) held.
(i.e., sale of rights and other
entitlements).
- ---------------------------------------- ------------------------------------- -------------------------------------
(4) Distribution ADSs pursuant to Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
(i) stock dividends, stock splits or fraction thereof) issued.
other free stock distributions, or
(ii) exercise of rights.
- ---------------------------------------- ------------------------------------- -------------------------------------
(5) Transfer of ADRs $1.50 per certificate presented Person presenting certificate for
transfer.
- ---------------------------------------- ------------------------------------- -------------------------------------
II. CHARGES
Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the
purpose of withdrawing Deposited Securities shall be responsible for the
following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
59
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
60
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 2
Section 1.1 ADS Record Date 2
Section 1.2 Affiliate 2
Section 1.3 American Depositary Receipt(s); Receipt(s); and ADR(s) 2
Section 1.4 American Depositary Share(s) 2
Section 1.5 Applicant 3
Section 1.6 Beneficial Owners 3
Section 1.7 Business Day 3
Section 1.8 Commission 3
Section 1.9 Company 3
Section 1.10 Custodian 3
Section 1.11 Deliver 3
Section 1.12 Deposit Agreement 3
Section 1.13 Depositary 3
Section 1.14 Deposited Securities 3
Section 1.15 Dollars 4
Section 1.16 DTC 4
Section 1.17 DTC Participant 4
Section 1.18 Exchange Act 4
Section 1.19 Foreign Currency 4
Section 1.20 Full Entitlement ADR(s), Full Entitlement ADS(s) and
Full Entitlement Share(s) 4
Section 1.21 Holder(s) 4
Section 1.22 National Securities Depository Limited and NSDL 4
Section 1.23 Partial Entitlement ADR(s), Partial Entitlement ADS(s)
and Partial Entitlement Share(s) 4
Section 1.24 Pre-Release Transaction 4
Section 1.25 Principal Office 4
Section 1.26 Registrar 5
Section 1.28 Restricted Securities 5
Section 1.30 Rupees and Rs. 5
Section 1.31 Securities Act 5
Section 1.32 Share Registrar 5
Section 1.33 Shares 5
Section 1.34 United States 6
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS 6
Section 2.1 Appointment of Depositary. 6
Section 2.2 Form and Transferability of Receipts. 6
Section 2.3 Deposit with Custodian. 8
Section 2.4 Registration and Safekeeping of Deposited Securities. 9
Section 2.5 Execution and Delivery of Receipts. 10
61
Section 2.6 Transfer, Combination and Split-up of Receipts 10
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. 11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc. 13
Section 2.9 Lost Receipts, etc. 14
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. 14
Section 2.11 Partial Entitlement ADSs. 14
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs 16
Section 3.1 Proofs, Certificates and Other Information 16
Section 3.2 Liability for Taxes and Other Charges 17
Section 3.3 Representations and Warranties on Deposit of Shares 17
Section 3.4 Compliance with Information Requests 18
Section 3.5 Ownership Restrictions. 18
ARTICLE IV THE DEPOSITED SECURITIES 19
Section 4.1 Cash Distributions 19
Section 4.2 Distribution in Shares 19
Section 4.3 [Intentionally omitted] 20
Section 4.4 Distribution of Rights to Purchase Additional ADSs 20
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares 22
Section 4.6 Distributions with Respect to Deposited Securities
in Bearer Form 23
Section 4.7 Redemption 23
Section 4.8 Conversion of Foreign Currency 24
Section 4.9 Fixing of ADS Record Date 24
Section 4.10 Voting of Deposited Securities 25
Section 4.11 Changes Affecting Deposited Securities 27
Section 4.12 Available Information 28
Section 4.13 Reports 28
Section 4.14 List of Holders 28
Section 4.16 Taxation 28
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY 29
Section 5.1 Maintenance of Office and Transfer Books by the Registrar 29
Section 5.2 Exoneration 30
Section 5.3 Standard of Care 31
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary 32
Section 5.5 The Custodian 32
Section 5.6 Notices and Reports 33
Section 5.7 Issuance of Additional Shares, ADSs etc 34
Section 5.8 Indemnification 35
62
Section 5.9 Fees and Charges of Depositary 36
Section 5.10 Pre-Release Transactions 36
Section 5.11 Restricted Securities Owners 37
ARTICLE VI AMENDMENT AND TERMINATION 37
Section 6.1 Amendment/Supplement 37
Section 6.2 Termination 38
ARTICLE VII MISCELLANEOUS 39
Section 7.1 Counterparts 39
Section 7.2 No Third-Party Beneficiaries 39
Section 7.3 Severability 39
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect 39
Section 7.5 Notices 40
Section 7.6 Governing Law and Jurisdiction 41
Section 7.7 Assignment 42
Section 7.8 Compliance with U.S. Securities Laws 42
Section 7.9 Titles and References 42
EXHIBITS
Exhibit A Form of Receipt
Exhibit B Fee Schedule