Exhibit 1.1
Infosys Technologies Limited
American Depositary Shares
Each Representing
One-Half of One Equity Share
par value Rs. 10 per share
Underwriting Agreement
[____________], 1999
Table of Contents
Section 1. Representations and Warranties of the Company.
(a) Compliance with Registration Requirements.................................2
(b) Offering Materials Furnished to Underwriters..............................2
(c) Distribution of Offering Material By the Company..........................3
(d) The Underwriting Agreement................................................3
(e) The Deposit Agreement.....................................................3
(f) Authorization of the Offered ADS, Equity Shares and ADRs..................3
(g) No Applicable Registration or Other Similar Rights........................4
(h) No Material Adverse Change................................................4
(i) Independent Accountants...................................................4
(j) Preparation of the Financial Statements...................................4
(k) Incorporation and Good Standing of the Company and its Subsidiaries.......5
(l) Capitalization and Other Capital Stock Matters............................5
(m) Stock Exchange Listing....................................................6
(n) Non-Contravention of Existing Instruments; No Further Authorizations or
Approvals Required............................................................6
(o) Non-Contravention of Indian law...........................................6
(p) No Actions or Proceedings.................................................7
(q) Intellectual Property Rights..............................................7
(r) All Necessary Permits, etc................................................7
(s) Title to Properties.......................................................7
(t) Tax Law Compliance........................................................8
(u) Company Not an "Investment Company".......................................8
(v) Insurance.................................................................8
(w) No Price Stabilization or Manipulation....................................8
(x) Related Party Transactions................................................8
(y) No Unlawful Contributions or Other Payments...............................9
(z) Company's Accounting System...............................................9
(aa) Compliance with Environmental Laws.......................................9
(bb) ERISA Compliance........................................................10
(cc) Form of Equity Share Certificates.......................................10
(dd) Stamp Duty and Other Transfer Taxes.....................................10
(ee) No Taxes With Respect to Dividends......................................10
(ff) Enforceability of Offered ADSs..........................................11
(gg) No Immunity from Suit in India..........................................11
(hh) Indemnification and Contribution........................................11
Section 2. Purchase, Sale and Delivery of the Offered ADSs...................11
(a) The Firm ADSs............................................................11
(b) The First Closing Date...................................................11
(c) The Optional ADSs; the Second Closing Date...............................12
(d) Public Offering of the Offered ADSs......................................12
(e) Payment for the Offered ADSs.............................................12
(f) Delivery of ADRs Evidencing the Offered ADSs.............................13
(g) Delivery of Prospectus to the Underwriters...............................13
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Section 3. Additional Covenants of the Company...............................13
(a) Review by Representatives of Proposed Amendments and Supplements.........13
(b) Securities Act Compliance................................................13
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters......................................................................14
(d) Copies of any Amendments and Supplements to the
Prospectus...................................................................14
(e) Blue Sky Compliance......................................................14
(f) Use of Proceeds..........................................................15
(g) Transfer Agent...........................................................15
(h) Earnings Statement.......................................................15
(i) Periodic Reporting Obligations; Maintenance of Listing...................15
(j) Agreement Not To Offer or Sell Additional Securities.....................15
(k) Future Reports to the Representatives....................................16
(l) Company to Provide Copy of the Prospectus in Form That May be Downloaded
from the Internet............................................................16
Section 4. Payment of Expenses...............................................16
Section 5. Conditions of the Obligations of the Underwriters.................17
(a) Accountants' Comfort Letter..............................................17
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD....................................................................17
(c) No Material Adverse Change or Ratings Agency
Change.......................................................................18
(d) Opinion of U.S. Counsel for the Company.................................18
(e) Opinion of Indian Counsel for the Company...............................18
(f) Opinion of U.S. Counsel for the Underwriters............................18
(g) Opinion of Indian Counsel for the Underwriters..........................18
(h) Opinion of Counsel to Depository.........................................19
(i) Officers' Certificate....................................................19
(j) Bring-down Comfort Letter................................................19
(k) Lock-Up Agreement from Certain Stockholders of the Company...............19
(l) Deposit Agreement........................................................19
(m) Additional Documents.....................................................20
Section 6. Reimbursement of Underwriters' Expenses...........................20
Section 7. Effectiveness of this Agreement...................................20
Section 8. Indemnification...................................................20
(a) Indemnification of the Underwriters......................................21
(b) Indemnification of the Company, its Directors and Officers...............22
(c) Notifications and Other Indemnification Procedures.......................22
(d) Settlements..............................................................23
Section 9. Contribution......................................................24
Section 10. Default of One or More of the Several Underwriter................25
Section 11. Termination of this Agreement....................................25
Section 12. Representations and Indemnities to Survive Delivery..............26
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Section 13. Notices..........................................................26
Section 14. Successors.......................................................27
Section 15. Partial Unenforceability.........................................27
Section 16. .................................................................27
(a) Governing Law Provisions.................................................27
(b) Consent to Jurisdiction..................................................28
(c) Waiver of Immunity.......................................................28
Section 17. Judgment Currency................................................28
Section 18. General Provisions...............................................29
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Underwriting Agreement
[__________________], 1999
NATIONSBANC MONTGOMERY SECURITIES LLC
BANCBOSTON ROBERTSON STEPHENS
BT ALEX. BROWN INCORPORATED
THOMAS WEISEL PARTNERS LLC
As Representatives of the several Underwriters
c/o NATIONSBANC MONTGOMERY SECURITIES LLC
600 Montgomery Street
San Francisco, California 94111
Ladies and Gentlemen:
Introductory. Infosys Technologies Limited, a public company
incorporated under the laws of the Republic of India (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule A hereto (the
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"Underwriters"), an aggregate of [___] American Depositary Shares ("ADSs")
representing one-half of one Equity Share Rs. 10 per share (the "Equity
Shares"). The [____] ADSs to be sold by the Company are collectively referred
to herein as the "Firm ADSs." In addition, the Company has granted to the
Underwriters an option to purchase up to an additional [___] ADSs (the "Optional
ADSs") as provided in Section 2. The Firm ADSs and, if and to the extent such
option is exercised, the Optional ADSs are collectively referred to herein as
the "Offered ADSs." NationsBanc Montgomery Securities LLC, BancBoston Robertson
Stephens, BT Alex. Brown Incorporated and Thomas Weisel Partners LLC have agreed
to act as representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the offering and sale of the ADSs.
Each Offered ADS will be evidenced by an American Depositary Receipt
(an "ADR") to be issued by Bankers Trust Company, as depositary (the
"Depositary"), pursuant to a Deposit Agreement dated as of [_______________],
1999 (the "Deposit Agreement") among the Company, the Depositary and the holders
and beneficial holders from time to time of the ADRs.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-1 (File No.
333-[_____]) which contains a form of prospectus to be used in connection with
the public offering and sale of the Offered ADSs. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), including any information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A
or Rule 434 under the Securities Act, is called the "Registration Statement."
Any registration statement filed by the Company pursuant to Rule 462(b) under
the Securities Act is called the "Rule 462(b) Registration Statement," and from
and after the date and time of filing of any such Rule 462(b) Registration
Statement the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The Company and the Depositary have also prepared and
filed with the Commission in accordance with the
1
provisions of the Securities Act a registration statement on Form F-6 (File No.
333-[_________]) relating to the ADSs and ADRs. Such registration statement, as
amended at the time it becomes effective, is hereinafter referred to as the "ADS
Registration Statement." The prospectus in the form first used by the
Underwriters to confirm sales of the Offered ADSs, is hereinafter referred to as
the "Prospectus"; provided, however, if the Company has, with the consent of
NationsBanc Montgomery Securities LLC, elected to rely upon Rule 434 under the
Securities Act, the term "Prospectus" shall mean the Company's prospectus
subject to completion (each, a "preliminary prospectus") dated [________], 1999
(such preliminary prospectus is called the "Rule 434 preliminary prospectus"),
together with the applicable term sheet (the "Term Sheet") prepared and filed by
the Company with the Commission under Rules 434 and 424(b) under the Securities
Act and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, the ADS
Registration Statement, a preliminary prospectus, the Prospectus or the Term
Sheet, or any amendments or supplements to any of the foregoing, shall include
any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
Section 1. Representations and Warranties of the Company. The
Company hereby represents, warrants and covenants to each Underwriter as
follows:
(a) Compliance with Registration Requirements. The Registration
Statement, the ADS Registration and any Rule 462(b) Registration
Statement have been declared effective by the Commission under the
Securities Act. The Company has complied to the Commission's satisfaction
with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement, the ADS Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such purpose
have been instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in
all material respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR (except as may be permitted by Regulation S-
T under the Securities Act), was identical to the copy thereof delivered to
the Underwriters for use in connection with the offer and sale of the
Offered ADSs. Each of the Registration Statement, the ADS Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto, at the time it became effective and at all subsequent
times, complied and will comply in all material respects with the
Securities Act and the rules, regulations and other requirements of the
Ministry of Finance of India (the "MOF"), the Reserve Bank of India (the
"RBI"), the Department of Company Affairs of India (the "DCA"), the Company
Law Board (the "CLB") and the Securities Exchange Board of India ("SEBI"),
as applicable, and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as amended or supplemented, as of its date and at all
subsequent times, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to statements in or
omissions from the
2
Registration Statement, the ADS Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by the Representatives expressly for
use therein. There are no statutes, regulations, contracts, agreements,
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement or the ADS Registration Statement that are not
described or filed as required.
A registration statement on Form 8-A has been filed with and declared
effective by the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) Offering Materials Furnished to Underwriters. The Company has
delivered to the Representatives three complete manually signed copies of
the Registration Statement, the ADS Registration Statement and of each
consent and certificate of experts filed as a part thereof, and conformed
copies of the Registration Statement and the ADS Registration Statement
(without exhibits) and preliminary prospectuses and the Prospectus, as
amended or supplemented, in such quantities and at such places as the
Representatives have reasonably requested for each of the Underwriters.
(c) Distribution of Offering Material By the Company. The Company
has not distributed and will not distribute, prior to the later of the
Second Closing Date (as defined below) and the completion of the
Underwriters' distribution of the Offered ADSs, any offering material in
connection with the offering and sale of the Offered ADSs other than a
preliminary prospectus, the Prospectus, the Registration Statement or the
ADS Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by
equitable principles of general applicability.
(e) The Deposit Agreement. The Deposit Agreement has been duly
authorized, and, upon execution and delivery by the Company and the
Depositary, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles of general
applicability.
(f) Authorization of the Offered ADS, Equity Shares and ADRs. The
Equity Shares to be issued in connection with the offering and sale of
the Offered ADSs have been duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered by the Company pursuant
to this Agreement, will be validly issued, fully paid and nonassessable
and will not be subject to any preemptive rights, rights of first
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refusal or other similar rights to subscribe for or purchase securities
of the Company. The Equity Shares may be freely deposited with the
Depositary against issuance of ADRs evidencing the Offered ADSs, although
there are restrictions on the future deposits of Equity Shares which are
fully and accurately disclosed in the Prospectus. The Offered ADSs are
freely transferable by the Company to the Underwriters in the manner
contemplated in this Agreement. Upon deposit of the underlying Equity
Shares with the custodian named in the Deposit Agreement pursuant to the
Deposit Agreement in accordance with the terms thereof, all right, title
and interest in such Equity Shares, free and clear of any security
interest, mortgage, pledge, claim, lien or other encumbrance (each, a
"Lien"), will be transferred to the Depositary on behalf of the
Underwriters. Upon issuance by the Depositary of the ADRs evidencing the
Offered ADSs against deposit of the underlying Equity Shares in
accordance with the provisions of the Deposit Agreement, such ADRs will
be duly and validly issued and will entitle the holders thereof to the
rights specified in the ADRs and the Deposit Agreement. There are no
restrictions on the transfer of such Equity Shares or the Offered ADSs,
except as described in the Prospectus. Immediately following the offering
and sale of the Offered ADSs pursuant to this Agreement, the ownership of
the Company will be as set forth in the Prospectus under "Principal
Shareholders."
(g) No Applicable Registration or Other Similar Rights. There are
no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement
or the ADS Registration Statement or included in the offering
contemplated by this Agreement.
(h) No Material Adverse Change. Except as otherwise disclosed in
the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus (without giving effect to any
amendment or supplement thereto): (i) there has been no material adverse
change, or any development that could reasonably be expected to result in
a material adverse change, in the condition, financial or otherwise, or
in the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change
is called a "Material Adverse Change"); (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has
been no dividend or distribution of any kind declared, paid or made by
the Company.
(i) Independent Accountants. KPMG Peat Marwick India Ltd. who have
expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) filed
with the Commission as a part of the Registration Statement and included
in the Prospectus, are independent public or certified public accountants
as required by the Securities Act and the applicable published rules and
regulations of the Commission thereunder.
(j) Preparation of the Financial Statements. The financial
statements filed with the Commission as a part of the Registration
Statement and included in the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of and at the
dates indicated and the results of their operations and cash
4
flows for the periods specified. Such financial statements have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. No other
financial statements or supporting schedules are required to be included
in the Registration Statement. The financial data set forth in the
Prospectus under the captions "Summary--Summary Consolidated Financial
Data," "Selected Consolidated Financial Data" and "Capitalization" fairly
present the information set forth therein on a basis consistent with that
of the audited financial statements contained in the Registration
Statement.
(k) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and, in the case of
the Company, to enter into and perform its obligations under this
Agreement and the Deposit Agreement. Each of the Company and each
subsidiary is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except to the extent that the
failure to so qualify or to be in good standing would not, individually
or in the aggregate, result in a Material Adverse Change. All of the
issued and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and,
except for 9,163,637 shares of Preferred Stock, par value $0.01 per
share, of Yantra owned by other investors as described in the Prospectus,
is owned by the Company, directly or through subsidiaries, free and clear
of any Lien. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries
listed in Exhibit 22 to the Registration Statement.
(l) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company (including the Equity
Shares, the ADSs and the ADRs) is as set forth in the Prospectus under
the caption "Capitalization" (other than for subsequent issuances, if
any, pursuant to employee benefit plans described in the Prospectus). The
terms, rights and preferences related to the authorized and issued
capital stock of the Company conform as to legal matters to the
description thereof contained in the Prospectus. No class of authorized
capital stock of the Company, other than the Equity Shares, exists. The
Equity Shares (including the Equity Shares represented by the Offered
ADSs) conform in all material respects to the description thereof
contained in the Prospectus. All of the issued and outstanding Equity
Shares have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with all applicable U.S.
and Indian Legal Requirements. None of the outstanding Equity Shares were
issued in violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase,
or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its
subsidiaries other than those described in the Prospectus. The
description of the Company's stock option, stock bonus and other stock
plans or arrangements, and the
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options or other rights granted thereunder, set forth in the Prospectus
accurately and fairly describes the material terms of such plans,
arrangements, options and rights.
(m) Stock Exchange Listing. The Offered ADSs have been duly
approved for quotation on the Nasdaq National Market and the underlying
Equity Shares have been approved for the listing on the the Stock
Exchange, Mumbai, the Bangalore Stock Exchange and the National Stock
Exchange of India (collectively, the "Indian Exchanges"), subject only to
official notice of issuance.
(n) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation,
Articles of Association, by-laws, Memorandum of Association or other such
charter documents (collectively, the "Charter Documents") or is in
default (or, with the giving of notice or lapse of time, would be in
default) ("Default") under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (each, an "Existing
Instrument"), except for such Defaults as would not, individually or in
the aggregate, result in a Material Adverse Change and would not impair
the performance by the Company of, or the validity or binding nature of,
this Agreement or the Deposit Agreement. The Company's execution,
delivery and performance of this Agreement and the Deposit Agreement and
consummation of the transactions contemplated hereby, thereby and by the
Prospectus (including, without limitation, the issuance of the Equity
Shares, their deposit under the Deposit Agreement and the issuance, sale
and delivery of the Offered ADSs and the related ADRs): (i) have been
duly authorized by all necessary corporate action (including, without
limitation, any required shareholder action) and will not result in any
violation of the provisions of the Charter Documents of the Company or
any subsidiary; (ii) will not conflict with or constitute a breach of, or
Default under, or result in the creation or imposition of any Lien upon
any property or assets of the Company or any of its subsidiaries pursuant
to, or require the consent of any other part to, any Existing Instrument,
except for such conflicts, breaches, Defaults, Liens, charges or
encumbrances as would not, individually or in the aggregate, result in a
Material Adverse Change and would not impair the performance by the
Company of, or the validity or binding nature of, this Agreement or the
Deposit Agreement; and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval, authorization or
other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency, is required for the
Company's execution, delivery and performance of this Agreement and the
Deposit Agreement and consummation of the transactions contemplated
thereby and by the Prospectus, except such as have been obtained or made
by the Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws, from the National
Association of Securities Dealers, Inc. (the "NASD") and any applicable
Indian governmental or regulatory authority or agency (including, without
limitation, the required approvals of the MOF, the RBI, the CBL, the DCA
and the SEBI).
(o) Non-Contravention of Indian law. The issuance by the Company of
the Equity Shares and the sale of Offered ADSs to purchasers outside of
India as
6
contemplated by this Agreement will not contravene any applicable law of
India (including, without limitation, any such applicable law limiting
foreign ownership of the Company or any Subsidiary) or constitute a
breach of or a default under any of the Licenses.
(p) No Actions or Proceedings. There are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened: (i) against or affecting the Company or any of its
subsidiaries; (ii) which has as the subject thereof any officer or
director of, or property owned or leased by, the Company or any of its
subsidiaries; or (iii) relating to environmental or employment
discrimination matters, where in any such case (A) there is a reasonable
possibility that such action, suit or proceeding might be determined
adversely to the Company or such subsidiary and (B) any such action, suit
or proceeding, if so determined adversely, would reasonably be expected
to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement and the
Deposit Agreement. No material labor dispute with the employees of the
Company or any of its subsidiaries, or with the employees of any
principal supplier of the Company, exists or, to the best of the
Company's knowledge, is threatened or imminent.
(q) Intellectual Property Rights. Except as otherwise disclosed in
the Prospectus, the Company and its subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their
businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse
Change. The Intellectual Property Rights used by the Company and its
subsidiaries in the conduct of their business do not infringe on the
rights of any third party, except for any such infringement which would
not result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict with
asserted Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would result in a
Material Adverse Change.
(r) All Necessary Permits, etc. The Company and each subsidiary
possess such valid and current certificates, authorizations or permits
issued by the appropriate Indian federal, state or foreign regulatory
agencies or bodies (including, without limitation, any United States
federal, state or local regulatory agencies or bodies) necessary to
conduct their respective businesses, and neither the Company nor any
subsidiary has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Change.
(s) Title to Properties. Except as otherwise disclosed in the
Prospectus, The Company and each of its subsidiaries has good and
marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 1(j) above (or elsewhere
in the Prospectus), in each case free and clear of any Liens, equities
and other defects, except such as do not materially and adversely affect
the value of such property and do not materially interfere with the use
made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements,
7
equipment and personal property held under lease by the Company or any
subsidiary are held under valid and enforceable leases, with such
exceptions as are not material and do not materially interfere with the use
made or proposed to be made of such real property, improvements, equipment
or personal property by the Company or such subsidiary.
(t) Tax Law Compliance. The Company and its subsidiaries have filed
all necessary Indian federal, state and foreign income and franchise tax
returns (including, without limitation, those required by United States
federal, state and local authorities) or have properly requested
extensions thereof and have paid all taxes required to be paid by any of
them and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them except as may be being contested in
good faith and by appropriate proceedings. The Company has made adequate
charges, accruals and reserves in the applicable financial statements
referred to in Section 1(j) above in respect of all Indian federal, state
and foreign income and franchise taxes (including, without limitation,
those required by United States federal, state and local authorities) for
all periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
(u) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the United States Investment
Company Act of 1940, as amended (the "Investment Company Act"). The
Company is not, and after receipt of payment for the Offered ADSs will
not be, an "investment company" within the meaning of Investment Company
Act and will conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(v) Insurance. Each of the Company and its subsidiaries are insured
by recognized, financially sound and reputable institutions with policies
in such amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary for their businesses including,
but not limited to, policies covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes. The Company has no reason
to believe that it or any subsidiary will not be able (i) to renew its
existing insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost
that would not result in a Material Adverse Change. Neither of the
Company nor any subsidiary has been denied any insurance coverage which
it has sought or for which it has applied.
(w) No Price Stabilization or Manipulation. The Company has not
taken and will not take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered ADSs or the related ADRs.
(x) Related Party Transactions. There are no business relationships
or related-party transactions involving the Company or any subsidiary or
any other person which have not been fully and accurately described in
the Prospectus. Each such transaction is on terms no less favorable to
the Company or such subsidiary, as the case may be, as could be obtained
on an arm's length basis from an unaffiliated third party.
8
(y) No Unlawful Contributions or Other Payments. Neither the
Company nor any of its subsidiaries nor, to the best of the Company's
knowledge, any employee or agent of the Company or any subsidiary, has
made any contribution or other payment to any official of, or candidate
for, any U.S. or Indian federal, state or foreign office in violation of
any law or of the character required to be disclosed in the Prospectus.
(z) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) Compliance with Environmental Laws. Except as would not,
individually or in the aggregate, result in a Material Adverse Change:
(i) neither the Company nor any of its subsidiaries is in violation of
any U.S. or Indian federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum and petroleum
products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environment Concern (collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of
the Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company
or any of its subsidiaries received any written communication, whether
from a governmental authority, citizens group, employee or otherwise,
that alleges that the Company or any of its subsidiaries is in violation
of any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no
written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees
or penalties arising out of, based on or resulting from the presence, or
release into the environment, of any Material of Environmental Concern at
any location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, "Environmental Claims"),
pending or, to the best of the Company's knowledge, threatened against
the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation
of law; and (iii) to the best of the Company's knowledge, there are no
past or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental Concern,
that reasonably could result in a violation of any Environmental Law or
form the basis of a
9
potential Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law.
(bb) ERISA Compliance. Except as otherwise disclosed in the
Prospectus, The Company and its subsidiaries and any "employee benefit
plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations
thereunder (collectively, "ERISA")) established or maintained by the
Company, its subsidiaries or their "ERISA Affiliates" (as defined below)
are in compliance in all material respects with ERISA. "ERISA Affiliate"
means, with respect to the Company or a subsidiary, any member of any
group of organizations described in Sections 414(b),(c),(m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the "Code") of which the Company or
such subsidiary is a member. No "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect to
any "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined under
ERISA). Neither the Company, its subsidiaries nor any of their ERISA
Affiliates has incurred or reasonably expects to incur any liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each "employee benefit plan" established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification.
(cc) Form of Equity Share Certificates. The form of certificate for
the Equity Shares conforms to the requirements of Indian law, the Charter
Documents of the Company, the Indian Exchanges and the description
thereof contained in the Prospectus, and the Offered ADSs and the ADRs
conform to the requirements of the Deposit Agreement and the Nasdaq
National Market.
(dd) Stamp Duty and Other Transfer Taxes. Except as disclosed in
Prospectus, stamp duty is payable in India in connection with the
issuance of the Equity Shares in the name of the Depositary; however, no
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable in India or any political
subdivision or taxing authority thereof or therein in connection with:
(i) the initial deposit with the Depositary of the Shares by the Company
against the issuance of the ADRs evidencing Offered ADSs; (ii) the sale
and delivery of the Offered ADSs to or for the respective accounts of the
Underwriters; (iii) the sale and delivery outside of India by the
Underwriters of the Offered ADSs or ADRs to the initial purchasers
thereof; or (iv) except as set forth in the Prospectus, the consummation
of any other transaction contemplated by this Agreement or the Deposit
Agreement in connection with the sale and delivery of the Offered ADSs or
the issuance of the ADRs.
(ee) No Taxes With Respect to Dividends. Except as disclosed in the
Prospectus, under applicable Indian laws and regulations, no taxes,
levies, imposts or
10
charges are required to be deducted or withheld from any payment by the
Company of a dividend in respect of the Equity Shares (including, without
limitation, those represented by ADSs) to persons not resident in India.
(ff) Enforceability of Offered ADSs. It is not necessary in order to
enable any party to enforce any of its rights under this Agreement or in
order to enable any owner of Offered ADSs to enforce any of its rights
that all or any of such parties or owners of Offered ADSs be licensed,
qualified or entitled to do business in India. None of the Underwriters
is or will be deemed to be resident, domiciled, carrying on business or
subject to taxation in India by reason of the ownership of Offered ADSs
or the entry into, performance and/or enforcement of this Agreement and
the transactions contemplated hereby.
(gg) No Immunity from Suit in India. The Company is subject to civil
and commercial law with respect to its obligations under this Agreement,
the Deposit Agreement and the ADRs. The execution and delivery by the
Company and the performance by the Company of its obligations thereunder
constitute private and commercial acts rather than governmental or public
acts, and neither the Company, any subsidiary of the Company nor any of
their respective properties enjoys any right of immunity in any
jurisdiction in India from suit, judgment, execution on a judgment or
attachment (whether before judgment or in aid of execution) in respect of
such obligations.
(hh) Indemnification and Contribution. The Company has full power,
authority and legal right to enter into and perform its obligations of
indemnification and contribution set forth in Section 7 of this Agreement
and neither the indemnification nor the contribution provisions of such
Section 7 contravene current Indian law.
Any certificate signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
Section 2. Purchase, Sale and Delivery of the Offered ADSs.
(a) The Firm ADSs. The Company agrees to issue and sell to the
several Underwriters the Firm ADSs upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set
forth, the Underwriters agree, severally and not jointly, to purchase
from the Company the respective number of Firm ADSs set forth opposite
their names on Schedule A. The purchase price per Firm ADS to be paid by
----------
the several Underwriters to the Company shall be US $[___].
(b) The First Closing Date. Delivery of certificates for ADRs
representing the Firm ADSs to be purchased by the Underwriters and
payment therefor shall be made at the offices of NationsBanc Montgomery
Securities LLC, 600 Montgomery Street, San Francisco, California (or such
other place as may be agreed to by the Company and the Representatives)
at 6:00 a.m. San Francisco time, on [___], 1999, or such other time and
date not later than 10:30 a.m. San Francisco time on [___], 1999, as the
Representatives shall designate by notice to the Company (the time and
date of such closing are called the
11
"First Closing Date"). The Company hereby acknowledges that circumstances
under which the Representatives may provide notice to postpone the First
Closing Date as originally scheduled include, but are in no way limited
to, any determination by the Company or the Representatives to
recirculate to the public copies of an amended or supplemented Prospectus
or a delay as contemplated by the provisions of Section 10.
(c) The Optional ADSs; the Second Closing Date. In addition, on the
basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of [___] Optional ADSs from
the Company at the purchase price per share to be paid by the
Underwriters for the Firm ADSs. The option granted hereunder is for use
by the Underwriters solely in covering any over-allotments in connection
with the sale and distribution of the Firm ADSs. The option granted
hereunder may be exercised at any time (but not more than once) upon
notice by the Representatives to the Company, which notice may be given
at any time within 30 days from the date of this Agreement. Such notice
shall set forth (i) the aggregate number of Optional ADSs as to which the
Underwriters are exercising the option, (ii) the names and denominations
in which the certificates for the Optional ADSs are to be registered and
(iii) the time, date and place at which such certificates will be
delivered (which time and date may be simultaneous with, but not earlier
than, the First Closing Date; and in such case the term "First Closing
Date" shall refer to the time and date of delivery of certificates for
ADRs representing the Firm ADSs and the Optional ADSs). Such time and
date of delivery, if subsequent to the First Closing Date, is called the
"Second Closing Date" and shall be determined by the Representatives and
shall not be earlier than three nor later than five full business days
after delivery of such notice of exercise. If any Optional ADSs are to be
purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Optional ADSs (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that
bears the same proportion to the total number of Optional ADSs to be
purchased as the number of Firm ADSs set forth on Schedule A opposite the
----------
name of such Underwriter bears to the total number of Firm ADSs. The
Representatives may cancel the option at any time prior to its expiration
by giving written notice of such cancellation to the Company.
(d) Public Offering of the Offered ADSs. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale to the
public, as described in the Prospectus, their respective portions of the
Offered ADSs as soon after this Agreement has been executed and the
Registration Statement and the ADS Registration Statement has been
declared effective as the Representatives, in their sole judgment, have
determined is advisable and practicable.
(e) Payment for the Offered ADSs. Payment for the Offered ADSs
shall be made at the First Closing Date (and, if applicable, at the
Second Closing Date) by wire transfer to the order of the Company of
immediately available federal funds in United States dollars.
It is understood that the Representatives have been authorized, for
their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for,
the Firm ADSs and any Optional ADSs
12
the Underwriters have agreed to purchase. NationsBanc Montgomery
Securities LLC, individually and not as the Representative of the
Underwriters, may (but shall not be obligated to) make payment for any
Offered ADSs to be purchased by any Underwriter whose funds shall not
have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
(f) Delivery of ADRs Evidencing the Offered ADSs. The Company shall
deliver, or cause to be delivered, to the Representatives for the
accounts of the several Underwriters certificates for ADRs evidencing the
Firm ADSs at the First Closing Date, against the release of a wire
transfer of immediately available federal funds for the amount of the
purchase price therefor. The Company shall also deliver, or cause to be
delivered, to the Representatives for the accounts of the several
Underwriters, certificates for ADRs evidencing the Optional ADSs the
Underwriters have agreed to purchase at the First Closing Date or the
Second Closing Date, as the case may be, against the release of a wire
transfer of immediately available federal funds for the amount of the
purchase price therefor. The certificates for ADRs shall be in definitive
form and registered in such names and denominations as the
Representatives shall have requested at least one full business day prior
to the First Closing Date (or the Second Closing Date, as the case may
be) and shall be made available for inspection on the business day
preceding the First Closing Date (or the Second Closing Date, as the case
may be) at a location in New York City as the Representatives may
designate. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than
12:00 p.m. on the second business day following the date the Offered ADSs
are released by the Underwriters for sale to the public, the Company
shall delivery or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall request.
Section 3. Additional Covenants of the Company.
The Company further covenants and agrees with each Underwriter as
follows:
(a) Review by Representatives of Proposed Amendments and Supplements.
During such period beginning on the date hereof and ending on the
later of the First Closing Date or such date, as in the opinion of counsel
for the Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer (the
"Prospectus Delivery Period"), prior to amending or supplementing the
Registration Statement (including any registration statement filed under
Rule 462(b) under the Securities Act), the ADS Registration Statement or
the Prospectus, the Company shall furnish to the Representatives for review
a copy of each such proposed amendment or supplement, and the Company shall
not file any such proposed amendment or supplement to which the
Representatives reasonably object.
(b) Securities Act Compliance. After the date of this Agreement,
the Company shall promptly advise the Representatives in writing (i) of
the receipt of any
13
comments of, or requests for additional or supplemental information from,
the Commission or any other regulatory authority, (ii) of the time and
date of any filing of any post-effective amendment to the Registration
Statement or the ADS Registration Statement or any amendment or
supplement to any preliminary prospectus or the Prospectus, (iii) of the
time and date that any post-effective amendment to the Registration
Statement or the ADS Registration Statement becomes effective and (iv) of
the issuance by the Commission or any other regulatory authority of any
stop order suspending the effectiveness of the Registration Statement,
the ADS Registration Statement or any post-effective amendment thereto or
of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Equity Shares, the Offered ADSs
or the ADRs from any securities exchange upon which the Equity Shares,
the Offered ADSs or the ADRs are listed for trading or included or
designated for quotation, or of the threatening or initiation of any
proceedings for any of such purposes. If a regulatory authority shall
enter any such stop order or simsilar order at any time, the Company will
use its best efforts to obtain the lifting of such order at the earliest
possible moment. Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b), 430A and 434, as applicable, under
the Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) were received in a
timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if in the opinion of the Representatives or
counsel for the Underwriters it is otherwise necessary to amend or
supplement the Prospectus to comply with law, the Company agrees to
promptly prepare (subject to Section 3(a) hereof), file with the
Commission and furnish at its own expense to the Underwriters and to
dealers, amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any
amendments and supplements thereto as the Representatives may request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register
the Offered ADSs and ADRs for sale under (or obtain exemptions from the
application of) the Blue Sky or securities laws of those jurisdictions
designated by the Representatives, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Offered ADSs and ADRs. The
Company shall not be required to qualify as a foreign corporation or to
take any action that would subject it to general service of process in
any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company will
advise the Representatives promptly of the suspension of the
qualification
14
or registration of (or any such exemption relating to) the Offered ADSs
or ADRs for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to
obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from
the sale of the Offered ADSs sold by it in the manner described under the
caption "Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at its
expense, a registrar and transfer agent for the Equity Shares, the
Offered ADSs and the ADRs and shall deposit the underlying Equity Shares
with the custodian named in the Depositary Agreement in accordance with
the terms of the Deposit Agreement so that ADRs evidencing the Offered
ADSs will be executed by the Depositary and delivered to the Underwriters
pursuant to this Agreement on the Closing Date and any Option Closing
Date.
(h) Earnings Statement. As soon as practicable, the Company will
make generally available to its security holders and to the
Representatives an earnings statement (which need not be audited)
covering the twelve-month period ending [___], 2000 that satisfies the
provisions of Section 11(a) of the Securities Act.
(i) Periodic Reporting Obligations; Maintenance of Listing. During
the Prospectus Delivery Period the Company shall file, on a timely basis,
with the Commission, the Nasdaq National Market and the Indian Exchanges
all reports and documents required to be filed under the Exchange Act. In
addition, the Company will submit to the Commission quarterly reports,
which will include unaudited quarterly condensed consolidated financial
information, on Form 6-K for the first three quarters of each fiscal year
and file its annual report on Form 20-F within the time period prescribed
under Section 13 of the Exchange Act for the filing by domestic issuers
of quarterly reports on Form 10-Q and annual reports on Form 10-K,
respectively. The Company shall use its best efforts to maintain the
listing of the ADSs on the Nasdaq National market or a national
securities exchange located in the United States.
(j) Agreement Not To Offer or Sell Additional Securities. During
the period of 180 days following the date of the Prospectus, the Company
will not, without the prior written consent of NationsBanc Montgomery
Securities LLC (which consent may be withheld at the sole discretion of
NationsBanc Montgomery Securities, Inc.), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or
establish an open "put equivalent position" within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or
announce the offering of, or file any registration statement under the
Securities Act in respect of, any Equity Shares, ADSs, ADRs, options or
warrants to acquire Equity Shares, ADSs, ADRs or securities exchangeable
or exercisable for or convertible into Equity Shares, ADSs, ADRs (other
than as contemplated by this Agreement and the Deposit Agreement with
respect to the Offered ADSs); provided, however, that the Company may
issue shares of its Equity Shares or options to purchase its Equity
Shares, or Equity Shares upon exercise of
15
options, pursuant to any stock option, stock bonus or other stock plan or
arrangement described in the Prospectus.
(k) Future Reports to the Representatives. During the period of
five years hereafter the Company will furnish to the Representatives c/o
NationsBanc Montgomery Securities LLC at 600 Montgomery Street, San
Francisco, CA 94111, Attention: Mark Kuperschmid: (i) as soon as
practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of
the close of such fiscal year and statements of income, stockholders'
equity and cash flows for the year then ended and the opinion thereon of
the Company's independent public or certified public accountants; (ii) as
soon as practicable after the filing thereof, copies of each Annual
Report on Form 20-F, Current Report on Form 6-K or other report filed by
the Company with the Commission, the NASD or any securities exchange; and
(iii) as soon as available, copies of any report or communication of the
Company mailed generally to holders of its capital stock.
(l) Company to Provide Copy of the Prospectus in Form That May be
Downloaded from the Internet. The Company shall cause to be prepared and
delivered, at its expense, within one business day from the effective
date of this Agreement, to NationsBanc Montgomery Securities LLC and any
other Representatives or Underwriters with the consent of NationsBanc
Montgomery Securities LLC an "electronic Prospectus" to be used by the
Underwriters in connection with the offering and sale of Offered ADSs. As
used herein, the term "electronic Prospectus" means a form of Prospectus,
and any amendment or supplement thereto, that meets each of the following
conditions: (i) it shall be encoded in an electronic format, satisfactory
to NationsBanc Montgomery Securities LLC that may be transmitted
electronically by NationsBanc Montgomery Securities LLC and the other
Underwriters to offerees and purchasers of the Offered ADSs; and (ii) it
shall disclose the same information as the paper Prospectus and
Prospectus filed pursuant to EDGAR, except to the extent that graphic
image material cannot be disseminated electronically, in which case such
graphic and image material shall be replaced in the electronic Prospectus
with a fair and accurate narrative description or tabular representation
of such material, as appropriate.
Section 4. Payment of Expenses. The Company agrees to pay all
costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Offered ADSs and ADRs (including all printing and
engraving costs), (ii) all fees and expenses of the Depositary, and registrar
and transfer agent of the Equity Shares, Offered ADSs and ADRs (if different),
(iii) all necessary issue, transfer and other stamp taxes in connection with
the issuance and sale of the Equity Shares and related Offered ADSs and ADRs
to the Underwriters, (iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants, financial advisors and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), the ADS Registration Statement, each preliminary
prospectus and the Prospectus, and all amendments and supplements thereto, and
this Agreement, (vi) all filing fees, attorneys' fees and expenses incurred by
the Company or the Underwriters in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any
part of the Offered ADSs or ADRs for offer and sale
16
under the Blue Sky laws, and, if requested by the Representatives preparing
and printing a "Blue Sky Survey" or memorandum, and any supplements thereto,
advising the Underwriters of such qualifications, registrations and
exemptions, (vii) the filing fees incident to, and the reasonable fees and
expenses of counsel for the Underwriters in connection with, the NASD's review
and approval of the Underwriters' participation in the offering and
distribution of the Offered ADSs and ADRs, (viii) the fees and expenses
associated with including the Offered ADSs on the Nasdaq National Market and
the listing of the Equity Shares underlying the Offered ADSs on the Indian
Exchanges, (ix) all fees associated with review and approval of the Offering
by Indian federal, state and local authorities, (x) other out of pocket
expenses incurred by the Underwriters in connection with the transactions
contemplated by this Agreement provided that such expenses shall not exceed
$______ ($______ if the Underwriters' overallotment option is exercised) and
(xi) all other fees, costs and expenses referred to in Item 13 of Part II of
the Registration Statement. Except as provided in this Section 4, Section 6,
Section 8 and Section 9 hereof, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
ADSs as provided herein on the First Closing Date and, with respect to the
Optional ADSs, the Second Closing Date, shall be subject to the accuracy of
the representations and warranties on the part of the Company set forth in
Section 1 hereof as of the date hereof and as of the First Closing Date as
though then made and, with respect to the Optional ADSs, as of the Second
Closing Date as though then made, to the timely performance by the Company of
its covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the
Representatives shall have received from KPMG Peat Marwick, independent
public or certified public accountants for the Company, a letter dated
the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinarily included in accountant's "comfort
letters" to underwriters, delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited
and unaudited financial statements and certain financial information
contained in the Registration Statement, the ADS Registration Statement
(if any) and the Prospectus (and the Representatives shall have received
an additional three conformed copies of such accountants' letter for each
of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the
Optional ADSs, the Second Closing Date:
(i) the Company shall have filed the Prospectus with the
Commission (including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have filed
a post-effective amendment to the Registration Statement containing
the information required by such Rule 430A, and such post-effective
amendment shall have become effective; or, if the Company elected to
rely upon Rule 434 under the Securities Act and obtained the
Representatives' consent thereto, the Company shall have filed a Term
Sheet with the Commission in the manner and within the time period
required by such Rule 424(b);
17
(ii) no stop order suspending the effectiveness of the
Registration Statement, the ADS Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment to the
Registration Statement or the ADS Registration Statement, shall be in
effect and no proceedings for such purpose shall have been instituted
or threatened by the Commission or any other regulatory authority; and
(iii) the NASD shall have raised no objection to the fairness
and reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the First
Closing Date and, with respect to the Optional ADSs, the Second Closing
Date:
(i) in the judgment of the Representatives there shall not have
occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinion of U.S. Counsel for the Company. On each of the First
Closing Date and the Second Closing Date the Representatives shall have
received the favorable opinion of Wilson, Sonsini, Goodrich & Rosati,
Professional Corporation, U.S. counsel for the Company, dated as of such
Closing Date, the form of which is attached as Exhibit A (and the
---------
Representatives shall have received an additional three conformed copies
of such counsel's legal opinion for each of the several Underwriters).
(e) Opinion of Indian Counsel for the Company. On each of the
First Closing Date and the Second Closing Date the Representatives shall
have received the favorable opinion of Crawford Bayley & Co., Indian
counsel for the Company, dated as of such Closing Date, the form of which
is attached as Exhibit B (and the Representatives shall have received an
---------
additional three conformed copies of such counsel's legal opinion for
each of the several Underwriters).
(f) Opinion of U.S. Counsel for the Underwriters. On each of the
First Closing Date and the Second Closing Date the Representatives shall
have received the favorable opinion of Latham & Watkins, U.S. counsel for
the Underwriters, dated as of such Closing Date, the form of which is
attached as Exhibit C (and the Representatives shall have received an
---------
additional three conformed copies of such counsel's legal opinion for
each of the several Underwriters).
(g) Opinion of Indian Counsel for the Underwriters. On each of the
First Closing Date and the Second Closing Date the Representatives shall
have received the favorable opinion of Nishith Desai Associates, Indian
counsel for the Underwriters, dated as of such Closing Date, the form of
which is attached as Exhibit D (and the
---------
18
Representatives shall have received an additional three conformed copies
of such counsel's legal opinion for each of the several Underwriters).
(h) Opinion of Counsel to Depository. On each of the First Closing
Date and the Second Closing Date the Representatives shall have received
the favorable opinion of Dewey Ballantine, counsel for the Depositary,
dated as of such Closing Date, the form of which is attached as Exhibit E
---------
(and the Representatives shall have received an additional three
conformed copies of such counsel's legal opinion for each of the several
Underwriters).
(i) Officers' Certificate. On each of the First Closing Date and
the Second Closing Date the Representatives shall have received a written
certificate executed by the Chairman and Managing Director (Chief
Executive Officer) of the Company and the Senior Vice President and Head -
Finance & Administration (Chief Financial Officer) of the Company, dated
as of such Closing Date, to the effect set forth in subsections (b)(ii)
and (c)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement
and prior to such Closing Date, there has not occurred any Material
Adverse Change;
(ii) the representations, warranties and covenants of the
Company set forth in Section 1 of this Agreement are true and
correct with the same force and effect as though expressly made on
and as of such Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(j) Bring-down Comfort Letter. On each of the First Closing Date
and the Second Closing Date, as the case may be, the Representatives
shall have received from KPMG Peat Marwick, independent public or
certified public accountants for the Company, a letter dated such date,
in form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letter furnished by them
pursuant to subsection (a) of this Section 5, except that the specified
date referred to therein for the carrying out of procedures shall be no
more than three business days prior to the First Closing Date or Second
Closing Date, as the case may be (and the Representatives shall have
received an additional three conformed copies of such accountants' letter
for each of the several Underwriters).
(k) Lock-Up Agreement from Certain Stockholders of the Company. On
or prior to the date hereof, the Company shall have furnished to the
Representatives an agreement in the form of Exhibit F hereto from each
---------
director (other than directors who do not own Equity Shares or rights to
purchase Equity Shares on the date of this Agreement) and executive officer
and certain family members of the Company's directors, and such agreement
shall be in full force and effect on each of the First Closing Date and the
Second Closing Date.
(l) Deposit Agreement. The Deposit Agreement shall be in full force
and effect. The Depositary shall have furnished or caused to be furnished
to you certificates
19
satisfactory to you evidencing: (x) the deposit with the custodian named
in the Deposit Agreement of the Equity Shares being so deposited against
issuance of ADRs evidencing Offered ADSs to be delivered by the Company
at the Closing Date; (y) the execution, issuance, signature and delivery
of ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement;
and (z) such other matters related thereto as you may reasonably request.
(m) Additional Documents. On or before each of the First Closing
Date and the Second Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions
as they may reasonably require for the purposes of enabling them to pass
upon the issuance and sale of the Offered ADSs as contemplated herein, or
in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements,
herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional ADSs, at any time prior to the
Second Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters' Expenses. If this
Agreement is terminated by the Representatives pursuant to Section 5, Section
7, Section 10 or Section 11 or if the sale to the Underwriters of the Offered
ADSs on the First Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company to perform any agreement
herein or to comply with any provision hereof, the Company agrees to reimburse
the Representatives and the other Underwriters (or such Underwriters as have
terminated this Agreement with respect to themselves), severally, upon demand
for all out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and the Underwriters in connection with the proposed purchase
and the offering and sale of the Offered ADSs, including but not limited to
fees and disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall
not become effective until the later of (i) the execution of this Agreement by
the parties hereto and (ii) notification by the Commission to the Company and
the Representatives of the effectiveness of the Registration Statement and the
ADS Registration Statement under the Securities Act. Prior to such
effectiveness, this Agreement may be terminated by any party by notice to each
of the other parties hereto, and any such termination shall be without
liability on the part (a) of the Company to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Representatives
and the Underwriters pursuant to Sections 4 and 6 hereof, (b) of any
Underwriter to the Company, or (c) of any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
Section 8. Indemnification.
20
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the meaning
of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Underwriter or
such controlling person may become subject, under the Securities Act, the
Exchange Act or other United States federal or state statutory law or
regulation or Indian federal or state statutory law or regulation, or at
United States or Indian common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below) arises
out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
ADS Registration Statement or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430A or Rule 434
under the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (ii) upon any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) in
whole or in part upon any inaccuracy in the representations and
warranties of the Company contained herein; or (iv) in whole or in part
upon any failure of the Company to perform its obligations hereunder or
under law; or (v) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner
to, the Offered ADSs or the Offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability
or action arising out of or based upon any matter covered by clause (i)
or (ii) above, provided that the Company shall not be liable under this
clause (v) to the extent that a court of competent jurisdiction shall
have determined by a final judgment that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct; and to reimburse each Underwriter
and each such controlling person for any and all expenses (including the
fees and disbursements of counsel chosen by NationsBanc Montgomery
Securities LLC) as such expenses are reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability
or expense to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representatives expressly for
use in the Registration Statement, the ADS Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that with respect to any preliminary
prospectus, the foregoing indemnity agreement shall not inure to the
benefit of any Underwriter from whom the person asserting any loss,
claim, damage, liability or expense purchased Offered ADSs, or any person
controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 2 and a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
21
have been delivered, at or prior to the written confirmation of the sale
of the Offered ADSs to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss,
claim, damage, liability or expense. The indemnity agreement set forth in
this Section 8(a) shall be in addition to any liabilities that the
Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed the Registration Statement or the ADS Registration Statement, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the
Securities Act, the Exchange Act, other United States federal or state
statutory law or regulation or Indian federal or state statutory law or
regulation, or at United States or Indian common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based upon any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement, the ADS Registration Statement, preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or arises out of or
is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the
ADS Registration Statement, any preliminary prospectus, the Prospectus
(or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Representatives expressly for use therein; and to reimburse the Company,
or any such director, officer or controlling person for any legal and
other expense reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the
only information that the Underwriters have furnished to the Company
expressly for use in the Registration Statement, the ADS Registration
Statement, any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) are the statements set forth (A) as the last one
paragraph on the inside front cover page of the Prospectus concerning
stabilization and passive market making by the Underwriters and (B) in
the table in the first paragraph and as the second paragraph under the
caption "Underwriting" in the Prospectus; and the Underwriters confirm
that such statements are correct. The indemnity agreement set forth in
this Section 8(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the
22
extent it is not prejudiced as a proximate result of such failure. In
case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to
the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to
the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the
indemnifying party (NationsBanc Montgomery Securities LLC in the case of
Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by Section 8(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
23
Section 9. Contribution.
If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the Offered ADSs pursuant to this Agreement or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Offered ADSs pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered ADSs pursuant to this Agreement (before deducting expenses) received by
the Company, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus (or, if Rule
434 under the Securities Act is used, the corresponding location on the Term
Sheet) bear to the aggregate initial public offering price of the Offered ADSs
as set forth on such cover. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact or any
such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Offered ADSs underwritten by
it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
24
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each officer and employee of an
- ----------
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement or the ADS Registration
Statement, and each person, if any, who controls the Company with the meaning of
the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
Section 10. Default of One or More of the Several Underwriter. If,
on the First Closing Date or the Second Closing Date, as the case may be, any
one or more of the several Underwriters shall fail or refuse to purchase
Offered ADSs that it or they have agreed to purchase hereunder on such date,
and the aggregate number of Offered ADSs which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of
the aggregate number of the Offered ADSs to be purchased on such date, the
other Underwriters shall be obligated, severally, in the proportions that the
number of Firm ADSs set forth opposite their respective names on Schedule A,
----------
bears to the aggregate number of Firm ADSs set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Offered ADSs which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date. If, on
the First Closing Date or the Second Closing Date, as the case may be, any one
or more of the Underwriters shall fail or refuse to purchase Offered ADSs and
the aggregate number of Offered ADSs with respect to which such default occurs
exceeds 10% of the aggregate number of Offered ADSs to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for
the purchase of such Offered ADSs are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that (i) the defaulting Underwriter shall bear liability
for its default and (ii) the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
In any such case either the Representatives or the Company shall have the
right to postpone the First Closing Date or the Second Closing Date, as the
case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement, the ADS Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 11. Termination of this Agreement. Prior to the First
Closing Date this Agreement maybe terminated by the Representatives by notice
given to the Company if at any time (i) trading or quotation in any of the
Company's securities shall have been suspended or limited by the Commission or
by the Nasdaq Stock Market or the Indian Exchanges, or trading in securities
generally on any of the Nasdaq Stock Market, the New York Stock Exchange or
one of the Indian Exchanges shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock
exchanges by the Commission, the NASD or any Indian regulatory authorities;
(ii) a general banking moratorium shall have been
25
declared by any United States, Indian, New York or California authorities;
(iii) there shall have occurred any outbreak or escalation of United States,
Indian or other international hostilities or any crisis or calamity, or any
change in the United States, Indian or international financial markets, or any
substantial change or development involving a prospective substantial change
in United States, Indian or international political, financial or economic
conditions, as in the judgment of the Representatives is material and adverse
and makes it impracticable to market the Offered ADSs in the manner and on the
terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained
a loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Representatives may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to
this Section 11 shall be without liability on the part of (a) the Company to
any Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representatives and the Underwriters pursuant to Sections 4
and 6 hereof, (b) any Underwriter to the Company, or (c) of any party hereto
to any other party except that the provisions of Section 8 and Section 9 shall
at all times be effective and shall survive such termination.
Section 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Offered ADSs sold hereunder and any
termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in
writing and shall be mailed, hand delivered or telecopied and confirmed to the
parties hereto as follows:
If to the Representatives:
NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, California 94111
USA
Facsimile: (415) 249-5558
Attention: Richard A. Smith
with a copy to:
NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, California 94111
USA
Facsimile: (415) 913-6241
Attention: Jack Levin, Esq.
and a copy to:
26
Latham & Watkins
75 Willow Road
Menlo Park, CA 94025
Facsimile: (650) 463-2600
Attention: Anthony J. Richmond, Esq.
If to the Company:
Infosys Technologies Limited
Electronics City, Hosur Road
Bangalore-561 229
INDIA
Facsimile: (91) 80-852-0362
Attention: Managing Director (Chief Executive Officer)
with a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Facsimile: (650) 493-6811
Attention: Jeffrey D. Saper, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Underwriters
pursuant to Section 10 hereof, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 8 and Section 9,
and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Offered ADSs as such from any of the Underwriters merely by
reason of such purchase.
Section 15. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
Section 16. (a) Governing Law Provisions. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, UNITED STATES OF AMERICA APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SUCH STATE.
27
(b) Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the
federal courts of the United States of America located in the City and
County of San Francisco or the courts of the State of California in each
case located in the City and County of San Francisco (collectively, the
"Specified Courts"), and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to
which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding
brought in any such court. The parties irrevocably and unconditionally
waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such
suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum. Each party not located in the United
States irrevocably appoints CT Corporation System, which currently
maintains a San Francisco office at 49 Stevenson Street, San Francisco,
California 94105, United States of America, as its agent to receive
service of process or other legal summons for purposes of any such suit,
action or proceeding that may be instituted in any state or federal court
in the City and County of San Francisco.
(c) Waiver of Immunity. With respect to any Related Proceeding,
each party irrevocably waives, to the fullest extent permitted by
applicable law, all immunity (whether on the basis of sovereignty or
otherwise) from jurisdiction, service of process, attachment (both before
and after judgment) and execution to which it might otherwise be entitled
in the Specified Courts, and with respect to any Related Judgment, each
party waives any such immunity in the Specified Courts or any other court
of competent jurisdiction, and will not raise or claim or cause to be
pleaded any such immunity at or in respect of any such Related Proceeding
or Related Judgment, including, without limitation, any immunity pursuant
to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Section 17. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder into any
currency other than U.S. dollars, the parties hereto agree and subject to
receipt of any necessary approval of the Reserve Bank of India (which the
Company hereby agrees to use its best efforts to obtain at the earliest
possible date), to the fullest extent that they may effectively do so, that
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures any Underwriter could purchase U.S. dollars with such other
currency in New York City on the business day preceding that on which final
judgment is given, net of any related fees on exchange.
The obligation of the Company in respect of any sum due from the
Company to any Underwriter, or of any Underwriter in respect of any sum due from
such Underwriter to the Company shall, notwithstanding any judgment in a
currency other than U.S. dollars, not be discharged until the first business
day, following receipt by such Underwriter or the Company, respectively, of any
sum adjudged to be so due in such other currency, on which (and only to the
extent that) such Underwriter or the Company, respectively, may in accordance
with normal banking procedures purchase U.S. dollars with such other currency;
if the U.S. dollars so
28
purchased are less than the sum originally due to such Underwriter or the
Company, respectively, hereunder, the Company or any such Underwriter,
respectively, agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter or the Company, respectively, against
such loss. If the U.S. dollars so purchased are greater than the sum
originally due to such Underwriter or the Company, respectively, hereunder,
such Underwriter and the Company, respectively, agrees to pay to the Company
or such Underwriter, respectively, an amount equal to the excess of the U.S.
dollars to purchased over the sum originally due to such Underwriter or the
Company, respectively, hereunder.
Section 18. General Provisions. This Agreement constitutes the
entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement may be
executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Table of Contents and the Section headings
herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8, the contribution provisions of Section
9 and the governing law and consent to jurisdiction provisions of Section 16,
and is fully informed regarding said provisions. Each of the parties hereto
further acknowledges that the provisions of said Sections 8 and 9 hereto fairly
allocate the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, the ADS Registration
Statement, any preliminary prospectus and the Prospectus (and any amendments and
supplements thereto), as required by the Securities Act and the Exchange Act.
* * * *
29
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
INFOSYS TECHNOLOGIES LIMITED
By:___________________________________
Managing Director (Chief Executive Officer)
The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in San Francisco, California as of the date first above
written.
NATIONSBANC MONTGOMERY SECURITIES LLC
BANCBOSTON ROBERTSON STEPHENS
BT ALEX. BROWN & SONS, INC.
THOMAS WEISEL PARTNERS LLC
Acting as Representatives of the
several U.S. Underwriters named in
the attached Schedule A.
By NATIONSBANC MONTGOMERY SECURITIES LLC
By:_____________________________
Authorized Signatory
S-1
SCHEDULE A
Number of
U.S. Firm ADSs
U.S. Underwriters to be Purchased
NationsBanc Montgomery Securities LLC........... [___]
BancBoston Robertson Stephens................... [___]
BT Alex. Brown Incorporated..................... [___]
Thomas Weisel Partners LLC...................... [___]
Total........................................ [___]
S-2
EXHIBIT A
The final form of the full opinion to be attached as
Exhibit A at the time this Agreement is executed.
Opinion of U.S. counsel for the Company to be delivered pursuant to
Section 5(d) of the Underwriting Agreement. Such opinion shall address the laws
of the United States and the laws of the State of New York. To the extent
required in providing such opinion and if permitted by the Representatives, such
U.S. counsel for the Company may rely on certain opinions of Indian counsel for
the Company.
References to the Prospectus in this Exhibit A include any supplements
---------
thereto at the Closing Date.
(i) The Underwriting Agreement has been duly executed and delivered by
the Company.
(ii) The Deposit Agreement has been duly executed and delivered by the
Company. Assuming the Deposit Agreement has been duly authorized by the
Company, the Deposit Agreement is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as rights to indemnification thereunder may be limited by applicable law and
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(iii) Each of the Registration Statement, the ADS Registration Statement
and the Rule 462(b) Registration Statement, if any, has been declared
effective by the Commission under the Securities Act, and the Form 8-A
Registration Statement has been declared effective by the Commission under the
Exchange Act. No stop order suspending the effectiveness of either of the
Registration Statement, the ADS Registration Statement, the Rule 462(b)
Registration Statement, if any, or the Form 8-A Registration Statement has
been issued under the Securities Act or the Exchange Act, as applicable, and,
to the best knowledge of such counsel, no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission. Any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) under the Securities Act has been made in the manner
and within the time period required by such Rule 424(b).
(iv) The Registration Statement, including any Rule 462(b) Registration
Statement, the ADS Registration Statement, the Prospectus, and each amendment
or supplement to the Registration Statement and/or the ADS Registration
Statement and the Prospectus, as of their respective effective or issue dates
(other than the financial statements and supporting schedules included therein
or in exhibits to the Registration Statement or the ADS Registration
Statement, as to which no opinion need be rendered) comply as to form in all
material respects with the applicable requirements of the Securities Act.
(v) The Offered ADSs have been approved for inclusion on the Nasdaq
National Market.
(vi) The statements in the Prospectus under the captions "Risk Factors--
Restrictions of U.S. Immigration," "Risk Factors--Intellectual Property
Rights," "Risk Factors--Equity
A-1
Shares Eligible for Future Sale," "Management's Discussion and Analysis and
Results of Operations--Liquidity and Capital Resources," "Business--Legal
Proceedings," "Business--Intellectual Property," "Management--Benefit Plans--
1998 Stock Option Plan," "Certain Transactions," "Taxation--United States
Federal Taxation," "Equity Shares Eligible For Future Sale" and
"Underwriting," insofar as such statements constitute matters of United
States federal or state law, summaries of legal matters, documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel and
fairly present and summarize, in all material respects, the matters referred
to therein.
(vii) To the best knowledge of such counsel, there are no legal or
governmental actions, suits or proceedings pending or threatened which are
required to be disclosed in the Registration Statement or the ADS Registration
Statement, other than those disclosed therein.
(viii) To the best knowledge of such counsel, there are no Existing
Instruments required to be described or referred to in the Registration
Statement or the ADS Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto; and the descriptions thereof and references
thereto are correct in all material respects.
(ix) No consent, approval, authorization or other order of, or
registration or filing with, any United Sates federal or state court or
other governmental authority or agency, is required for the Company's
execution, delivery and performance of the Underwriting Agreement and the
Deposit Agreement and consummation of the transactions contemplated thereby
and by the Prospectus, except as required under the Securities Act,
applicable United States state securities or blue sky laws and from the NASD
(all of which have been made or obtained and are in full force and effect).
(x) The execution and delivery of the Underwriting Agreement and the
Deposit Agreement by the Company and the performance by the Company of its
obligations thereunder (other than performance by the Company of its
obligations under the indemnification section of the Underwriting Agreement
and Deposit Agreement, as to which no opinion need be rendered) will not
result in any violation of any United States federal or state law,
administrative regulation or administrative or court decree applicable to the
Company.
(xi) The Company is not, and after receipt of payment for the Offered
ADSs will not be, an "investment company" within the meaning of Investment
Company Act.
(xii) The ADRs conform to the requirements of the Deposit Agreement and
the Nasdaq National Market.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Underwriters at which the contents
of the Registration Statement, the ADS Registration Statement, the Prospectus,
and any supplements or amendments thereto, and related matters were discussed
and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the ADS Registration Statement or the
Prospectus (other than as specified above), and any
A-2
supplements or amendments thereto, on the basis of the foregoing, nothing has
come to their attention which would lead them to believe that either the
Registration Statement, the ADS Registration Statement or any amendments
thereto, at the time the Registration Statement, the ADS Registration
Statement or such amendments became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or at the First Closing Date or the Second Closing
Date, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial and statistical data
derived therefrom, included in the Registration Statement, the ADS
Registration Statement or the Prospectus or any amendments or supplements
thereto).
A-3
EXHIBIT B
The final form of the full opinion to be attached as
Exhibit B at the time this Agreement is executed.
Opinion of Indian counsel for the Company to be delivered pursuant to
Section 5(e) of the Underwriting Agreement.
References to the Prospectus in this Exhibit B include any supplements
---------
thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing
and in good standing as a company under the laws of India and has all
corporate power and authority necessary to conduct its businesses and to
own, lease and operate its properties as described or contemplated in the
Prospectus.
(ii) The Company has a Equity and issued capitalization as set forth
in the Prospectus and such capitalization complies with Indian law. The
summary of the Charter Documents and Indian law set forth in the
Prospectus is accurate and complete in all material respects. The
authorized share capital of the Company (including the Equity Shares, the
ADSs and the ADRs) conforms to the description thereof under the heading
"Description of Equity Shares" in the Prospectus.
(iii) The shares of capital stock of the Company outstanding prior
to the issuance of the Equity Shares represented by the ADSs have been
duly and validly authorized, are validly issued and outstanding, are
fully paid and nonassessable, conform to the description thereof
contained in the Prospectus and, to the best of our knowledge after due
inquiry, have been issued in compliance with the registration and
qualification requirements of Indian securities laws. The Equity Shares
represented by the ADSs and deposited pursuant to the Deposit Agreement
in accordance with the Underwriting Agreement (the "Deposited Shares")
have been duly and validly authorized by the Company, and when such
Equity Shares are issued and delivered upon payment in accordance with
the terms of the Underwriting Agreement, such Equity Shares will be duly
and validly issued and outstanding, fully paid, and nonassessable, rank
pari passu with the other Equity Shares outstanding[, except as
specifically indicated to the contrary in the Prospectus,] and will not
be subject to any Lien, encumbrance, preemptive right, equity, call right
or other claim, and there are no restrictions on the voting or transfer
of the Deposited Shares, the ADSs or the ADRs, except as described in the
Prospectus. The Deposited Shares, when deposited pursuant to the Deposit
Agreement in accordance with the Underwriting Agreement, will continue to
be validly issued and outstanding and fully paid and nonassessable and
will entitle the holders thereof to the rights specified in the ADSs, the
ADRs and the Deposit Agreement. There are no restrictions on the transfer
of the Deposited Shares, the ADSs or the ADRs, except as fully and
accurately described in the Prospectus. The form of certificate for the
Equity Shares conforms to the requirements of Indian law and the Charter
Documents of the Company, and the ADSs and the ADRs conform to the
requirements of the Deposit Agreement and the Indian Exchanges. The ADSs
have been approved for listing on the Indian Exchanges.
B-1
(iv) There are neither any preemptive nor other similar rights to
subscribe for or to purchase any of the Deposited Shares, the ADSs or the
ADRs, except for rights that have been validly waived, nor any restrictions
on the voting or transfer of any of the Equity Shares, in either case,
pursuant to the Charter Documents of the Company or any agreement known to
us to which the Company is a party, and the deposit of such Equity Shares
pursuant to the Deposit Agreement will not give rise to any such preemptive
or other similar rights or restrictions.
(v) The Company has full power and authority to enter into and
perform its obligations under the Underwriting Agreement and the Deposit
Agreement (together, the "Principal Agreements"). The Principal Agreements
have been duly authorized, executed and delivered by the Company and,
assuming they are valid and binding agreements under laws of the State of
New York by which they are expressed to be governed, the Principal
Agreements constitute valid and binding agreements of the Company,
enforceable in accordance with their terms subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles, save that the said Principal Agreements
will only be admissible in evidence in India for the purposes of
enforcement if they are duly stamped in accordance with the Indian Stamp
Act, 1899 and the Karnataka Stamp Act, 1957 within three months from the
date of their first receipt in India with the proper Stamp Duty chargeable
thereon. The Deposit Agreement, the ADSs and the ADRs conform to the
description thereof in the Prospectus. The Deposit Agreement is in proper
legal form for enforcement against the Company in India, subject to the
aforesaid qualification regarding payment of stamp duties. The ADSs and
the ADRs are in proper legal form for enforcement against the Company in
India. The Depositary and any holder or owner of ADSs or ADRs issued under
the Deposit Agreements are each entitled to sue as plaintiff in the Indian
courts for the enforcement of their respective rights against the Company
and such access will not be subject to any conditions which are not
applicable to Indian persons.
(vi) The execution, delivery and performance by the Company of
the Principal Agreements and the consummation of the transactions
contemplated thereby (including the issuance of the Equity Shares to be
represented by the ADSs, the deposit of such Equity Shares pursuant to the
Deposit Agreement, the issuance and sale of the ADSs and the issuance of
the ADRs) will not conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will such
action result in a violation of the Charter Documents of the Company or of
any Indian law or of any order, rule or regulation of any Indian court or
governmental body or agency having jurisdiction over the Company, or its
properties or assets or the rules and regulations of the Indian Exchanges.
(vii) No consent, approval, authorization or order of, or filing,
registration or qualification with, any Indian court or governmental
agency or body is required for the execution, delivery and performance of
the Principal Agreements, the issuance or sale of the Deposited Shares or
the ADSs, the issuance of the ADRs and the consummation of
B-2
the transactions contemplated by the Principal Agreements, except such
consents, approvals, authorizations, orders, filings, registrations or
qualifications listed in Schedule I hereto (all of which have been
obtained or made and continue to be in full force and effect).
(viii) Each of the Registration Statement, the ADS Registration
Statement, the Rule 462(b) Registration Statement, if any, and the
Prospectus has been duly approved by the Board of Directors of the Company,
and each of the Registration Statement, the ADS Registration Statement and
the Rule 462(b) Registration Statement, if any, and the Prospectus has been
duly executed by the officers and directors of the Company set forth on the
signature pages thereto.
(ix) The execution and delivery by the respective parties to the
Principal Agreements and the performance by such parties of the obligations
thereunder and the consummation of the transactions contemplated by such
agreements will not result in a breach or violation of any of the terms and
provisions of, any applicable Indian law or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental agency or body
in India or any Indian court, stock exchange or self-regulatory
organization in India having jurisdiction over such parties or any of their
properties.
(x) Except as described in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Underwriters
to India or to any political subdivision or taxing authority thereof or
therein in connection with (A) the deposit with the Depositary of the
Equity Shares against the issuance of ADSs or ADRs, (B) the purchase of the
ADSs by the Underwriters, (C) the sale and delivery by the Underwriters of
the ADSs or ADRs to the initial purchasers thereof, or (D) the consummation
of any other transactions contemplated in the Principal Agreements in
connection with the issuance and sale of the ADSs or the issuance of the
ADRs.
(xi) The indemnification and contribution provisions set forth in
Sections 8 and 9 of the Underwriting Agreement do not contravene Indian law
or public policy.
(xii) Except as described in the Prospectus, all dividends and
other distributions declared and payable on the Deposited Shares may under
current Indian laws and regulations be paid to the custodian of the
Depositary in Indian rupees that may be converted into foreign currency and
freely transferred out of India; all such dividends and other distributions
made to holders of Equity Shares, ADSs or ADRs who are non-residents of
India will not be subject to Indian income, withholding or other taxes
under Indian laws and regulations and are otherwise free and clear of any
other tax duty, withholding or deduction, without the necessity of
obtaining any Indian governmental authorization in India.
(xiii) The Indian courts will observe and give effect to the
choice of the law of the State of New York as the governing law of the
Principal Agreements.
(xiv) The Company has the power to submit, and has taken all
necessary action to submit, to the jurisdiction of any Specified Court and
to appoint CT Corporation
B-3
System as its agent for service of process. The waiver by the Company of
any objection to venue of a proceeding in any Specified Court is valid
and legally binding. Service of process effected in the manner set forth
in the Underwriting Agreement, assuming it is valid under New York law,
will be effective, subject to the Indian procedural laws governing
service of process, to confer valid personal jurisdiction over the
Company. The Company and the holders of Equity Shares, ADSs or ADRs can
sue and be sued in their own names under the laws of India. The
irrevocable submission by the Company to the jurisdiction of any
Specified Court constitutes a valid and legally binding obligation of the
Company so long as such submission to jurisdiction is not contrary to
Indian public policy, and we have no reason to believe that such
submission to jurisdiction is contrary to Indian public policy. Any
judgment obtained in a Specified Court arising out of or in relation to
the obligations of the Company under the Principal Agreements, as the
case may be, or the transactions contemplated thereby will be recognized
and enforced by Indian courts subject to what is provided under the
caption "Enforceability of Civil Liabilities" in the Prospectus.
(xv) The Principal Agreements are in proper legal form for
enforcement against the Company in India, and any Underwriter in respect of
the Underwriting Agreement and each of the Depositary and any holder of
ADSs or ADRs in respect of the Deposit Agreements is entitled to sue as
plaintiff in the Indian courts for the enforcement of their respective
rights against the Company, and such access will not be subject to any
conditions which are not applicable to Indian persons. None of the
Underwriters is or will be deemed to be resident, domiciled, carrying on
business or subject to taxation in India by reason of the ownership of
Equity Shares, ADSs or ADRs or the entry into, performance and/or
enforcement of this Agreement.
(xvi) The Company is subject to civil and commercial law with
respect to its obligations under the Principal Agreements, the ADSs and the
ADRs. The execution and delivery by the Company and the performance by the
Company of its obligations thereunder constitute private and commercial
acts rather than governmental or public acts, and neither the Company, any
subsidiary of the Company nor any of their respective properties enjoys any
right of immunity in any jurisdiction in India from suit, judgment,
execution on a judgment or attachment (whether before judgment or in aid of
execution) in respect of such obligations.
(xvii) To the best of our knowledge after due inquiry and except
as described in the Prospectus, there are no litigation or governmental
proceedings pending or threatened against the Company or any subsidiary of
the Company which, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on the
business, properties, financial condition or results of operations of the
Company or on the ability of the Company to perform its obligations under
the Principal Agreements.
(xviii) To the best of our knowledge after due inquiry, the
Company and its subsidiaries have all material licenses, permits,
certificates, franchises and other approvals or authorizations from all
regulatory officials and bodies that are necessary to the conduct of their
businesses and to the ownership or lease of their properties as described
or contemplated in the Prospectus.
B-4
(xix) To the best of such counsel's knowledge, after due inquiry,
the Company has complied in all material respects with its Charter
Documents and, except as described in the Prospectus, with each of its
documents of title to its properties, mortgages, deeds of trust, and loan
agreements and there exists no default under any such documents of title,
mortgages, deeds of trust or loan agreements which has not been waived
nor has the Company nor any such subsidiary received any notice of
default with respect thereto.
(xx) The statements (A) in the Prospectus under the captions
"Enforcement of Civil Liabilities," "Risk Factors--Risks Related to
Investments in Indian Securities," "Risk Factors--Risks Associated with
Possible Acquisitions," "Risk Factors--Restrictions on Exercise of
Preemptive Rights by ADS Holders," "Risk Factors--Control by Principal
Shareholders, Officers and Directors; Anti-Takeover Provisions,"
"Dividend Policy," "Price Range of Equity Shares," "Management's
Discussion and Analysis and Results of Operations--Liquidity and Capital
Resources," "Management's Discussion and Analysis and Results of
Operations--Income Tax Matters," "Business--Facilities," "Business--
Intellectual Property," "Business--Legal Proceedings," "Management,"
"Certain Transactions," "Description of Equity Shares," "Restrictions on
Foreign Ownership of Indian Securities," "Government of India Approvals"
and "Taxation--Indian Taxation," and (B) in Item 14 and Item 15 of the
Registration Statement, insofar as such statements constitute a summary
of legal documents or matters of Indian law or regulations or legal
conclusions with respect thereto, are complete and accurate and are
confirmed in all material respects.
(xxi) [To the best of our knowledge after due inquiry, there are
no persons with registration or other similar rights to have any equity or
debt securities Equity for sale under the Registration Statement or the ADS
Registration Statement or included in the offering contemplated by the
Underwriting Agreement, except for such rights as have been duly waived].
(xxii) It is not necessary (a) in order to enable the
Underwriters or any of them to exercise or enforce any of their rights
under the Underwriting Agreement; (b) to enable the Depositary or the
holders or owners of ADSs to exercise or enforce any of its rights under
the Deposit Agreement and (c) by reason of the entry into and/or
performance of the Underwriting Agreement or the Deposit Agreement that any
or all of the Underwriter's or the Depositary or the holders or owners of
ADSs should be licensed, qualified or entitled to do business in India.
(xxxiii) None of the Purchasers or the Depositary is or will be
resident, domiciled, carrying on business or subject to taxation in India
by reason only of the entry into, performance and/or enforcement of the
Principal Agreements.
In addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public or
certified public accountants for the Company and with representatives of the
Underwriters at which the contents of the Registration Statement, the ADS
Registration Statement, the Prospectus, and any supplements or amendments
thereto, and related matters were discussed and, although we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the ADS
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the
B-5
basis of the foregoing, nothing has come to our attention which would lead us
to believe that either the Registration Statement, the ADS Registration
Statement or any amendments thereto, at the time the Registration Statement,
the ADS Registration Statement or such amendments became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that we express no
belief as to the financial statements or schedules or other financial and
statistical data derived therefrom, included in the Registration Statement,
the ADS Registration Statement or the Prospectus or any amendments or
supplements thereto).
B-6
EXHIBIT C
The final form of the full opinion shall be attached as
Exhibit C at the time this Agreement is executed.
Opinion of U.S. counsel for the Underwriters to be delivered pursuant
to Section 5(f) of the Underwriting Agreement. Such opinion shall address the
laws of the United States. To the extent required in providing and opinion and
if permitted by the Representatives, such U.S. counsel for the Underwriters may
rely on certain opinions of Indian counsel for the Underwriters.
References to the Prospectus in this Exhibit C include any supplements
---------
thereto at the Closing Date.
(i) The Registration Statement and the ADS Registration Statement
have been declared effective by the Commission under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement or the ADS
Registration Statement has been issued under the Securities Act and, to the best
knowledge of such counsel, no proceedings therefor have been initiated by the
Commission.
(ii) The Registration Statement and, the Prospectus, and each
amendment or supplement to the Registration Statement and/or the ADS
Registration Statement and the Prospectus, as of their respective effective or
issue dates (other than the financial statements, schedules or other financial
data included in, or omitted from, the Registration Statement or the Prospectus,
as to which no opinion need be rendered) comply as to form in all material
respects with the requirements for registration statements on Form F-1 under the
Act and the rules and regulations of the Commission thereunder.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel to
the Company, representatives of the independent public accountants for the
Company and with representatives of the Underwriters at which the contents of
the Registration Statement, the Prospectus, and any supplements or amendments
thereto, and related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, and any supplements or amendments thereto, and has
not made any independent check or verification thereof, during the course of
such participation, no facts came to their attention that caused them to believe
that either the Registration Statement, or any amendments thereto, at the time
the Registration Statement or such amendments became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief as to the financial statements, schedules or other financial data
included in, or omitted from, the Registration Statement or the Prospectus or
any amendments or supplements thereto).
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EXHIBIT D
The final form of the full opinion to be attached as
Exhibit D at the time this Agreement is executed.
Opinion of Indian counsel for the Underwriters to be delivered
pursuant to Section 5(g) of the Underwriting Agreement. Such opinion shall
address the laws of the Republic of India.
References to the Prospectus in this Exhibit D include any supplements
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thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing
and in good standing as a company under the laws of India.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(iii) The Deposit Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Equity Shares represented by the ADSs and deposited
pursuant to the Deposit Agreement in accordance with the Underwriting Agreement
(the "Deposited Shares") have been duly and validly authorized by the Company,
and when such Equity Shares are issued and delivered upon payment in accordance
with the terms of the Underwriting Agreement, such Equity Shares will be duly
and validly issued and outstanding, fully paid, and nonassessable, rank pari
passu with the other Equity Shares outstanding and will not be subject to any
Lien, encumbrance, preemptive right, equity, call right or other claim, and
there are no restrictions on the voting or transfer of the Deposited Shares, the
ADSs or the ADRs, except as described in the Prospectus. The Deposited Shares,
when deposited pursuant to the Deposit Agreement in accordance with the
Underwriting Agreement, will continue to be validly issued and outstanding and
fully paid and nonassessable and will entitle the holders thereof to the rights
specified in the ADSs, the ADRs and the Deposit Agreement. There are no
restrictions on the transfer of the Deposited Shares, the ADSs or the ADRs,
except as fully and accurately described in the Prospectus. The ADSs and the
ADRs conform to the requirements of the Deposit Agreement and the Indian
Exchanges.
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EXHIBIT E
The final opinion in draft form to be attached as
Exhibit E at the time this Agreement is executed.
Opinion of counsel for the Depositary to be delivered pursuant to
Section 5(h) of the Underwriting Agreement. Such opinion shall address the laws
of the United States.
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming it has been duly authorized, executed
and delivered by the Company, the Deposit Agreement constitutes a legally valid
and binding obligation of the Depositary, enforceable against the Depositary in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights generally and to general equity principles.
(ii) Upon due issuance by the Depositary of the ADRs representing the
ADSs against deposit of Equity Shares in accordance with the Deposit Agreement,
such ADRs will be duly and validly issued and persons in whose names such ADRs
are registered will be entitled to the rights of registered holders of ADRs
specified therein and in the Deposit Agreement.
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LOCK UP AGREEMENT
EXHIBIT F
__________, 1999
NationsBanc Montgomery Securities LLC
As representative of the several underwriters
600 Montgomery Street
San Francisco, California 94111
Re: Infosys Technologies Limited
----------------------------
Ladies & Gentlemen:
Infosys Technologies Limited (the "Company") proposes to carry out a public
offering of American Depositary Shares (the "Offering") for which you will act
as representative of the underwriters (the "Underwriters"). The undersigned is
an owner of record or beneficial owner of certain equity shares of the Company
or securities convertible into or exchangeable or exercisable for equity shares
including, without limitation, any related American Depositary Shares or
securities convertible into or exchangeable or exercisable for such American
Depositary Shares (collectively, "Company Stock"), or is an executive officer or
director of the Company. The undersigned recognizes that the Offering will be
of benefit to the undersigned and will benefit the Company by, among other
things, raising additional capital for its operations. The undersigned
acknowledges that you are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into the underwriting arrangements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of NationsBanc
Montgomery Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale) pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended, or otherwise dispose of
any Company Stock, currently or hereafter owned either of record or beneficially
(as defined in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by
the undersigned, or publicly announce the undersigned's intention to do any of
the foregoing (all of the foregoing being collectively referred to herein as a
"Transfer"), for a period commencing on the date hereof and continuing to a date
180 days after the first date any of the American Depositary Shares to be sold
in the Offering are released by you for sale to the public. The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of Company Stock
held by the undersigned except in compliance with the foregoing restrictions.
It is expressly understood that this agreement applies to all transactions,
whether it be transactions related to equity shares in India or related to
American Depositary Shares in the United States, except transactions involving
shares of Company Stock purchased in the open market and not otherwise in breach
of this lock up agreement.
Notwithstanding the foregoing, (i) if the undersigned is an individual,
he or she may transfer any or all of the Company Stock either during his or her
lifetime or upon death, by gift, will or intestacy, to his
F-1
or her immediate family or to a trust, the beneficiaries of which are
exclusively the undersigned and/or members of his or her immediate family, or
(ii) if the undersigned is a corporation or a partnership, it may transfer any
or all the Company Stock as a distribution to partners or shareholders of the
undersigned; provided, however, that in any such case it shall be a condition
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to the transfer that the transferee execute an agreement stating that the
transferee is receiving and holding the Company Stock subject to the
provisions of this lock up agreement, and there shall be no further transfer
of such Company Stock except in accordance herewith.
This agreement shall be governed by the laws of the State of California
and is irrevocable and will be binding on the undersigned and the respective
successors, heirs, personal representatives and assigns of the undersigned.
The undersigned understands that the Company and the Underwriters will
proceed toward the proposed Offering in reliance upon this lock up agreement.
If the effective date of the Registration Statement (as such term is defined
in the Underwriting Agreement between the Company and the Underwriters
relating to the Offering) has not occurred on or before October 31, 1999, then
this lock up agreement shall be null and void.
Dated:_________________, 1999
__________________________________________
Printed Name of Holder
By:_______________________________________
Signature
__________________________________________
Printed Name of Person Signing
(and indicate capacity of person signing if signing as
custodian, trustee, or on behalf of an entity)
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