Exhibit 1.1
[2,505,000] American Depositary Shares
SATYAM INFOWAY LIMITED
American Depositary Shares
Each Representing One Equity Share, Par Value Rs.10 Per Share
U.S. UNDERWRITING AGREEMENT
---------------------------
October __, 1999
MERRILL LYNCH & CO.
Salomon Smith Barney Inc.
As U.S. Representatives of the several U.S. Underwriters
named in Schedule I hereto
c/o Merrill Lynch & Co.
North Tower
World Financial Center
New York, New York 10281-1209
Ladies/Gentlemen:
Satyam Infoway Limited, a limited liability company formed under the
laws of the Republic of India (the "Company"), proposes to issue and sell to
Merrill Lynch & Co. ("Merrill Lynch"), Salomon Smith Barney Inc. and each of the
other U.S. Underwriters named in Schedule I hereto (collectively, the "U.S.
Underwriters"), for whom Merrill Lynch and Salomon Smith Barney Inc. are acting
as representatives (in such capacity, the "U.S. Representatives"), an aggregate
of [2,505,000] American Depositary Shares (the "Firm ADSs") each representing
one equity share, par value Rs.10 per share (the "Equity Shares"), of the
Company, subject to the terms and conditions set forth herein. The Company also
proposes to issue and sell to the several U.S. Underwriters not more than an
additional [626,250] American Depositary Shares (the "Additional ADSs"), each
representing one Equity Share, if requested by the U.S. Underwriters as provided
in Section 2 hereof. The Firm ADSs and the Additional ADSs are hereinafter
referred to collectively as the "ADSs". The Firm ADSs ("Initial U.S.
Securities") and the Additional ADSs ("U.S. Option Securities") are hereinafter
called, collectively, the "U.S. Securities". The offer of the U.S. Securities
by the U.S. Underwriters is hereinafter called the "U.S. Offering".
Each ADS will be evidenced by an American Depositary Receipt (an
"ADR") to be issued by Citibank, N.A., as depositary (the "Depositary"),
pursuant to a Deposit Agreement dated as of October __, 1999 (the "Deposit
Agreement") by and among the Company, the Depositary and the holders and
beneficial holders from time to time of the ADSs.
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering pursuant to Regulation S under the Securities Act of
1933, as amended (the "1933 Act"), by the Company of an aggregate of 1,670,000
American Depositary Shares (the "Initial International Securities") through
arrangements with certain underwriters outside the United States and Canada (the
"International Underwriters") and the grant by the Company to the International
Underwriters, acting severally and not jointly, of an option to purchase all of
any part of the International Underwriters' pro rata portion of up to
___________ additional American Depositary Shares to cover allotments, if any,
and for other transactions (the "International Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities."
The U.S. Underwriters and the International Underwriters are
hereinafter collectively called the "Underwriters", the Initial U.S. Securities
and the Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter called the "Securities". The U.S. Offering and the
International Offering are collectively called the "Offerings". This Agreement
(the "U.S. Purchase Agreement") and the International Purchase Agreement are
hereinafter collectively called the "Purchase Agreements". All references to
"US dollars" or "$" herein are to United States dollars.
The Underwriters will concurrently enter into an Agreement Among
Syndicates of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co.
2.
I. Registration Statement and Prospectus. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form F-1 (File No. 333-10852), including a
prospectus, relating to the U.S. Securities. Such registration statement also
relates to a portion of the International Securities which are being
registered solely for the purpose of their re-sale in the United States in
such transactions as require registration under the 1933 Act. The registration
statement, as amended at the time it became effective, including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Act, is hereinafter
referred to as the "Registration Statement". Two forms of prospectuses are to
be used in connection with the offering and sale of the Securities: one
relating to the U.S. Securities (the "U.S. Prospectus") and one relating to
the International Securities (the "International Prospectus"). The U.S.
Prospectus may also be used in connection with re-sales of the International
Securities in the United States to the extent that any such transactions would
not otherwise be exempt from registration under the 1933 Act. The
International Prospectus is identical to the U.S. Prospectus, except for the
front cover and back cover pages and the information under the caption
"Underwriting". The U.S. Prospectus and the International Prospectus are
referred to collectively as the "Prospectuses". If the Company has filed or is
required pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Act (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. The Company and the Depositary have also prepared and
filed with the Commission, in accordance with the provisions of the Act, a
registration statement on Form F-6 (File No. 333-_______) relating to the U.S.
Securities. Such registration statement, as amended at the time it becomes
effective, is hereinafter referred to as the "ADS Registration Statement".
3.
II. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS; ADDITIONAL
EXPENSES. ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS
CONTAINED IN THIS AGREEMENT, AND SUBJECT TO ITS TERMS AND CONDITIONS, THE
COMPANY AGREES TO ISSUE AND SELL, AND EACH UNDERWRITER AGREES, SEVERALLY AND
NOT JOINTLY, TO PURCHASE FROM THE COMPANY AT A PRICE PER ADS OF $______ (THE
"PURCHASE PRICE") THE NUMBER OF INITIAL U.S. SECURITIES SET FORTH OPPOSITE THE
NAME OF SUCH UNDERWRITER IN SCHEDULE I HERETO.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the U.S. Option Securities and the U.S. Underwriters shall have the
right to purchase, severally and not jointly, up to [626,500] U.S. Option
Securities from the Company at the Purchase Price. U.S. Option Securities may
be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Initial U.S. Securities. The U.S.
Underwriters may exercise their right to purchase U.S. Option Securities in
whole or in part from time to time by giving written notice thereof to the
Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the U.S. Underwriters and such notice shall specify the
aggregate number of U.S. Option Securities to be purchased pursuant to such
exercise and the date for payment and delivery thereof, which date shall be a
business day (i) no earlier than two business days after such notice has been
given (and, in any event, no earlier than the Closing Date (as hereinafter
defined)) and (ii) no later than ten business days after such notice has been
given. If any U.S. Option Securities are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number of
U.S. Option Securities (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
of U.S. Option Securities to be purchased from the Company as the number of
Initial U.S. Securities set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Initial U.S. Securities.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, disposes of or transfer any
Equity Shares, ADSs, or any securities convertible into or exercisable or
exchangeable for Equity Shares, ADSs or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, economic consequences of ownership of the Equity Shares, ADSs
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Equity Shares, ADSs or such other
securities, in cash or otherwise), whether any such swap or transaction is to be
settled by delivery of Equity Shares, ADSs or other securities, in cash or
otherwise, except to the U.S. Underwriters pursuant to this Agreement and
pursuant to the Deposit Agreement, for a period of 180 days after the date of
the U.S. Prospectus without the prior written consent of Merrill Lynch.
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options pursuant to the Company's existing stock option plan and (ii) the
Company may issue Equity Shares upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof. The Company also
agrees not to file any registration statement with respect to any Equity Shares,
ADSs or any securities convertible into or exercisable or exchangeable for
Equity Shares, ADSs for a period of 180 days after the date of the U.S.
Prospectus without the prior written consent of Merrill Lynch. The Company
shall,
4.
prior to or concurrently with the execution of this Agreement, deliver an
agreement executed by (i) each of the directors and officers of the Company and
(ii) each stockholder listed on Annex I hereto to the effect that such person
will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the U.S. Prospectus, without the
prior written consent of Merrill Lynch, (A) engage in any of the transactions
described in the first sentence of this paragraph or (B) make any demand for, or
exercise any right with respect to, the registration of any Equity Shares, ADSs
or any securities convertible into or exercisable or exchangeable for Equity
Shares or ADSs.
Notwithstanding any other provision of this Agreement, you hereby
agree (i) to assume and to pay all obligations of (a) Brobeck, Phleger &
Harrison LLP, United States counsel for the U.S. Underwriters, and (b) Nishith
Desai Associates, Indian counsel to the U.S. Underwriters, in the case of (a)
and (b) for reasonable fees and expenses and (ii) to reimburse Donaldson, Lufkin
& Jenrette Securities Corporation for out of pocket expenses (not to exceed
$65,000), in the case of (i) and (ii), incurred in connection with the
transactions contemplated by this Agreement.
5.
III. TERMS OF PUBLIC OFFERING. THE COMPANY IS ADVISED BY YOU THAT THE U.S.
UNDERWRITERS PROPOSE (I) TO MAKE A PUBLIC OFFERING OF THEIR RESPECTIVE
PORTIONS OF THE U.S. SECURITIES AS SOON AFTER THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AS IN YOUR JUDGMENT IS ADVISABLE AND (II) INITIALLY TO OFFER
THE U.S. SECURITIES UPON THE TERMS SET FORTH IN THE U.S. PROSPECTUS.
IV. DELIVERY OF ADRS EVIDENCING THE ADSS. THE COMPANY SHALL DELIVER, OR CAUSE
TO BE DELIVERED, TO THE REPRESENTATIVES FOR THE ACCOUNTS OF THE SEVERAL U.S.
UNDERWRITERS ADRS EVIDENCING THE INITIAL U.S. SECURITIES AT THE CLOSING DATE
(AS DEFINED BELOW), AGAINST THE RELEASE OF A WIRE TRANSFER OF FEDERAL OR
OTHER IMMEDIATELY AVAILABLE FUNDS IN NEW YORK CITY. THE COMPANY SHALL
DELIVER, OR CAUSE TO BE DELIVERED, TO THE REPRESENTATIVES FOR THE ACCOUNTS OF
THE SEVERAL U.S. UNDERWRITERS, ADRS EVIDENCING THE U.S. OPTION SECURITIES THE
U.S. UNDERWRITERS HAVE AGREED TO PURCHASE AT THE CLOSING DATE OR THE OPTION
CLOSING DATE (AS DEFINED BELOW), AS THE CASE MAY BE, AGAINST THE RELEASE OF A
WIRE TRANSFER OF FEDERAL OR OTHER IMMEDIATELY AVAILABLE FUNDS IN NEW YORK
CITY. THE ADRs SHALL BE IN DEFINITIVE FORM AND REGISTERED IN SUCH NAMES AND
DENOMINATIONS AS MERRILL LYNCH SHALL REQUEST NO LATER THAN TWO BUSINESS DAYS
PRIOR TO THE CLOSING DATE OR THE APPLICABLE OPTION CLOSING DATE (AS DEFINED
BELOW), AS THE CASE MAY BE. THE ADRs SHALL BE MADE AVAILABLE FOR INSPECTION
NOT LATER THAN 9:30 a.m., NEW YORK CITY TIME, ON THE BUSINESS DAY PRIOR TO
THE CLOSING DATE OR THE APPLICABLE OPTION CLOSING DATE, AS THE CASE MAY BE,
AT A LOCATION IN NEW YORK CITY AS THE REPRESENTATIVES MAY DESIGNATE. IF THE
U.S. UNDERWRITERS SO ELECT, DELIVERY OF THE ADRS EVIDENCING THE U.S.
SECURITIES MAY BE MADE BY CREDIT THROUGH FULL FAST TRANSFER TO THE ACCOUNTS
AT THE DEPOSITARY TRUST COMPANY DESIGNATED BY THE U.S. UNDERWRITERS. THE TIME
AND DATE OF DELIVERY AND PAYMENT FOR THE INITIAL U.S. SECURITIES SHALL BE
9:00 A.M., NEW YORK CITY TIME, ON OCTOBER __, 1999 OR SUCH OTHER TIME ON THE
SAME OR SUCH OTHER DATE AS MERRILL LYNCH AND THE COMPANY SHALL AGREE IN
WRITING. THE TIME AND DATE OF DELIVERY FOR THE INITIAL U.S. SECURITIES ARE
REFERRED TO HEREIN AS THE "CLOSING DATE". THE TIME AND DATE OF DELIVERY AND
PAYMENT FOR ANY U.S. OPTION SECURITIES TO BE PURCHASED BY THE U.S.
UNDERWRITERS SHALL BE 9:00 a.m., NEW YORK CITY TIME, ON THE DATE SPECIFIED IN
THE APPLICABLE EXERCISE NOTICE GIVEN BY YOU PURSUANT TO SECTION 2 OR SUCH
OTHER TIME ON THE SAME OR SUCH OTHER DATE AS MERRILL LYNCH AND THE COMPANY
SHALL AGREE IN WRITING. THE TIME AND DATE OF DELIVERY FOR ANY U.S. OPTION
sECURITIES ARE REFERRED TO HEREIN AS AN "OPTION CLOSING DATE".
6.
The documents to be delivered on the Closing Date or any Option
Closing Date on behalf of the parties hereto pursuant to Section 8 of this
Agreement shall be delivered at the offices of Brobeck, Phleger & Harrison LLP,
1633 Broadway, 47th Floor, New York, New York 10019, and the ADRs shall be
delivered at the designated location, all on the Closing Date or such Option
Closing Date, as the case may be.
7.
V. AGREEMENTS OF THE COMPANY. THE COMPANY AGREES WITH YOU:
A. To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement, the ADS Registration Statement or amendments or
supplements to the U.S. Prospectus or for additional information, (ii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, the ADS Registration Statement
or of the suspension of qualification of the U.S. Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purposes, (iii) when any amendment to the Registration Statement or ADS
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective
and (v) of the happening of any event during the period referred to in
Section 5(d) below which makes any statement of a material fact made in the
Registration Statement, the ADS Registration Statement or the U.S.
Prospectus untrue or which requires any additions to or changes in the
Registration Statement, the ADS Registration Statement or the U.S.
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement or the ADS Registration Statement, the Company
will use its reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
B. To furnish to you four signed copies of the Registration Statement and
the ADS Registration Statement as first filed with the Commission and of
each amendment thereto, including all exhibits, and to furnish to you and
each Underwriter designated by you such number of conformed copies of the
Registration Statement and the ADS Registration Statement as so filed and of
each amendment thereto, without exhibits, and the U.S. Prospectus as amended
or supplemented, as you may reasonably request.
C. To prepare the U.S. Prospectus, the form and substance of which shall be
reasonably satisfactory to you, and to file the U.S. Prospectus in such form
with the Commission within the applicable period specified in Rule 424(b)
under the Act; during the period specified in Section 5(d) below, not to
file any further amendment to the Registration Statement or the ADS
Registration Statement and not to make any amendment or supplement to the
U.S. Prospectus of which you shall not previously have been advised or to
which you shall reasonably object after being so advised; and, during such
period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement, ADS
Registration Statement or amendment or supplement to the U.S. Prospectus
which may be necessary or advisable in connection with the distribution of
the U.S. Securities by you, and to use its reasonable best efforts to cause
any such amendment to the Registration Statement or the ADS Registration
Statement to become promptly effective.
8.
D. Prior to 10:00 A.M., New York City time, on the first business day after
the date of this Agreement and from time to time thereafter for such period
as in the opinion of counsel for the U.S. Underwriters a U.S. Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or a dealer, to furnish in New York City to each Underwriter and any dealer
as many copies of the U.S. Prospectus (and of any amendment or supplement to
the U.S. Prospectus) as such Underwriter or dealer may reasonably request.
E. If during the period specified in Section 5(d), any event shall occur or
condition shall exist as a result of which, in the opinion of counsel for
the U.S. Underwriters, it becomes necessary to amend or supplement the U.S.
Prospectus in order to make the statements therein, in the light of the
circumstances when the U.S. Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the U.S. Underwriters, it
is necessary to amend or supplement the U.S. Prospectus to comply with
applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the U.S. Prospectus so that the
statements in the U.S. Prospectus, as so amended or supplemented, will not
in the light of the circumstances when it is so delivered, be misleading, or
so that the U.S. Prospectus will comply with applicable law, and to furnish
to each Underwriter and to any dealer as many copies thereof as such
Underwriter or dealer may reasonably request.
F. Prior to any public offering of the U.S. Securities, to cooperate with
you and counsel for the U.S. Underwriters in connection with the
registration or qualification of the U.S. Securities for offer and sale by
the several U.S. Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue such
registration or qualification in effect so long as required for distribution
of the U.S. Securities and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction
in which it is not now so qualified or to take any action that would subject
it to general consent to service of process or taxation other than as to
matters and transactions relating to the U.S. Prospectus, the Registration
Statement, the ADS Registration Statement any preliminary U.S. Prospectus or
the offering or sale of the U.S. Securities, in any jurisdiction in which it
is not now so subject.
G. To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
__________, 2000 that shall satisfy the provisions of Section 11(a) of the
Act, and to advise you in writing when such statement has been so made
available.
H. During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of U.S. Securities or
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and such
other publicly available information concerning the Company as you may
reasonably request.
9.
I. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the U.S. Securities and ADRs under the Act and
all other fees and expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), the ADS Registration Statement, any preliminary
U.S. Prospectus, the U.S. Prospectus and all amendments and supplements to
any of the foregoing, including the mailing and delivering of copies thereof
to the U.S. Underwriters and dealers in the quantities specified herein,
(ii) all costs and expenses related to the transfer and delivery of the U.S.
Securities and ADRs to the U.S. Underwriters, including any transfer or
other taxes payable thereon, (iii) all costs of printing this Agreement and
any other agreements or documents in connection with the offering, purchase,
sale or delivery of the U.S. Securities and ADRs, (iv) all expenses in
connection with the registration or qualification of the U.S. Securities for
offer and sale under the securities or Blue Sky laws of the several states
and all costs of printing or producing any Preliminary and Supplemental Blue
Sky Memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the U.S. Underwriters in connection with
such registration or qualification and memoranda relating thereto), (v) the
filing fees and disbursements of counsel for the U.S. Underwriters in
connection with the review and clearance of the offering of the U.S.
Securities by the National Association of Securities Dealers, Inc. (the
"NASD"), (vi) all fees and expenses in connection with the preparation and
filing of the registration statement on Form 8-A relating to the U.S.
Securities and all costs and expenses incident to the listing of the U.S.
Securities on the Nasdaq National Market, (vii) the cost of printing the
ADRs, (viii) the costs and charges of any transfer agent, registrar and/or
depositary, including the Depositary, (ix) all fees associated with review
and approval of this offering by Indian federal, local and state authorities
and (x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section.
J. To use its reasonable best efforts to list for quotation the U.S.
Securities on the Nasdaq National Market and to maintain the listing of the
U.S. Securities on the Nasdaq National Market for a period of three years
after the date of this Agreement.
K. To use its reasonable best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company
prior to the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the ADRs
evidencing the U.S. Securities.
L. If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the U.S. Securities, to file a Rule 462(b)
Registration Statement with the Commission registering the U.S. Securities
not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City
time, on the date of this Agreement and to pay to the Commission the filing
fee for such Rule 462(b) Registration Statement at the time of the filing
thereof or to give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
10.
VI. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. AS OF THE DATE HEREOF, THE
COMPANY REPRESENTS AND WARRANTS TO EACH UNDERWRITER THAT:
A. The Registration Statement and the ADS Registration Statement have become
effective (other than any Rule 462(b) Registration Statement to be filed by
the Company after the effectiveness of this Agreement); any Rule 462(b)
Registration Statement filed after the effectiveness of this Agreement will
become effective no later than 10:00 P.M., New York City time, on the date
of this Agreement; and no stop order suspending the effectiveness of the
Registration Statement or ADS Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
B. (i) The Registration Statement and ADS Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not contain
and, as amended, if applicable, 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, (ii) the
Registration Statement and ADS Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the U.S. Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Act and the rules and regulations 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 and Exchange Board of India (the "SEBI"), as applicable (iii)
if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) 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 and (B) will comply in all material
respects with the Act and the rules and regulations of the MOF, the RBI, the
DCA, the CLB and the SEBI and (iv) the U.S. Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, ADS Registration Statement, Rule
462(b) Registration Statement, if any, or the U.S. Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use therein.
11.
C. Each preliminary U.S. Prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in any preliminary U.S. Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein.
D. The Company has been duly organized, is validly existing in good standing
under the laws of its jurisdiction of organization and has the power and
authority to carry on its business as described in the U.S. Prospectus, to
own, lease and operate its properties and to enter into this Agreement and
the Deposit Agreement, and is duly qualified and is in good standing in each
jurisdiction in which the nature of its business or its ownership or leasing
of property requires such qualification, except where the failure to be so
qualified could not reasonably be expected to have a material adverse effect
on the business, prospects, financial condition or results of operations of
the Company (a "Material Adverse Effect").
E. There are no outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or liens granted or issued by
the Company relating to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of the Company, except as otherwise
disclosed in the Registration Statement or which could not reasonably be
expected to have a Material Adverse Effect.
12.
F. All the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights, except as otherwise disclosed
in the Registration Statement or which could not reasonably be expected to
have a Material Adverse Effect on the Company. The Equity Shares to be
issued in connection with the offering and the sale of the U.S. Securities
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 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 U.S. Securities, though there are restrictions on the future deposit of
Equity Shares which are fully and accurately described in the U.S.
Prospectus. The U.S. Securities are freely transferable by the Company to
the U.S. Underwriters in the manner contemplated in this Agreement. Upon
receipt 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 U.S. Underwriters. Upon issuance by the Depositary of the ADRs
evidencing the U.S. Securities 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 U.S. Securities,
except as described in the U.S. Prospectus.
G. The Company does not presently own or control, directly or indirectly,
any interest in any other corporation, association, or other business
entity. The Company is not a participant in any joint venture, partnership,
or similar arrangement.
H. The authorized capital stock of the Company conforms as to legal matters
to the description thereof contained in the U.S. Prospectus.
I. The Company is not in violation of its respective certificate of its
Articles or Memorandum of Association or in default in the performance of
any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, note, contract, franchise, mortgage, lease or other
agreement or instrument that is material to the Company to which the Company
is a party or by which the Company or its respective property is bound.
13.
J. The execution, delivery and performance of this Agreement and the Deposit
Agreement by the Company, the compliance by the Company with all the
provisions hereof and thereby and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as have been obtained or made by
the Company and are in full force and effect under the Act, under applicable
state securities or blue sky laws and from the NASD and any applicable
Indian governmental or regulatory authority or agency, including, without
limitation, the required approvals of the MOF, RBI, CLB, DCA and SEBI), (ii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the Articles or Memorandum of Association of the Company
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company to which the Company is a party
or by which the Company or its respective property is bound, (iii) violate
or conflict with any applicable law or any rule, regulation, judgment, order
or decree of any court or any governmental body or agency having
jurisdiction over the Company, or its respective property (including any
laws limiting foreign ownership of the Company) or (iv) result in the
suspension, termination or revocation of any Authorization (as defined
below) of the Company or any other impairment of the rights of the holder of
any such Authorization.
K. There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company is or could be a party
or to which any of its respective property is or could be subject; nor are
there any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the U.S.
Prospectus or to be filed as exhibits to the Registration Statement that are
not so described or filed as required. No material labor dispute with the
employees of the Company or any of its subsidiaries exists or is threatened.
L. The Company has not violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or any provisions of the
Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
14.
M. Except as disclosed in the U.S. Prospectus, the Company has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make
any such filing or notice could not reasonably be expected to, singly or in
the aggregate, have a Material Adverse Effect. Except as disclosed in the
U.S. Prospectus, each such Authorization is valid and in full force and
effect and the Company is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority
or governing body) which allows or, after notice or lapse of time or both,
would allow, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization; and
such Authorizations contain no restrictions that are burdensome to the
Company; except where such failure to be valid and in full force and effect
or to be in compliance, the occurrence of any such event or the presence of
any such restriction could not reasonably be expected to, singly or in the
aggregate, have a Material Adverse Effect.
N. There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on
operating activities and any potential liabilities to third parties) which
could reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
O. This Agreement and the Deposit Agreement have been duly authorized,
executed and delivered by the Company and constitute valid and binding
agreements of the Company.
P. KPMG Peat Marwick, India are independent public accountants with respect
to the Company and its subsidiaries as required by the Act.
15.
Q. The consolidated financial statements included in the Registration
Statement and the U.S. Prospectus (and any amendment or supplement thereto),
together with related schedules and notes, present fairly the consolidated
financial position, results of operations and changes in financial position
of the Company on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with United States
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance
with generally accepted accounting principles the information required to be
stated therein; and the other financial and statistical information and data
set forth in the Registration Statement and the U.S. Prospectus (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company.
R. The Company is not and, after giving effect to the offering and sale of
the U.S. Securities and the application of the proceeds thereof as described
in the U.S. Prospectus, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
S. Except for the [list the agreements], there are no contracts, agreements
or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under the
Act with respect to any securities of the Company or to require the Company
to include such securities with the U.S. Securities registered pursuant to
the Registration Statement.
T. Since the respective dates as of which information is given in the U.S.
Prospectus other than as set forth in the U.S. Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial
or otherwise, or the earnings, business, management or operations of the
Company, (ii) there has not been any material adverse change or any
development involving a prospective material adverse change in the capital
stock or in the long-term debt of the Company and (iii) the Company has not
incurred any material liability or obligation, direct or contingent.
U. The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with 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.
16.
V. The form of certificate for the Equity Shares conforms to the
requirements of Indian law, the Articles or Memorandum of Association of the
Company and the description thereof contained in the U.S. Prospectus, and
the U.S. Securities and the ADRs conform to the requirements of the Deposit
Agreement and the Nasdaq National Market.
W. Except as disclosed in the U.S. 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
Equity Shares by the Company against the issuance of the ADRs evidencing
U.S. Securities; (ii) the sale and delivery of the U.S. Securities to or for
the respective accounts of the U.S. Underwriters; (iii) the sale and
delivery outside of India by the U.S. Underwriters of the U.S. Securities or
the ADRs to the initial purchasers thereof; or (iv) except as set forth in
the U.S. Prospectus, the consummation of any other transaction contemplated
by this Agreement or the Deposit Agreement in connection with the sale and
delivery of the U.S. Securities or the issuance of the ADRs.
X. Except as disclosed in the U.S. Prospectus, under applicable laws and
regulations, no taxes, levies, imposts or 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 U.S. Securities) to persons not resident in India.
Y. It is not necessary in order to enable any party to enforce any of its
rights under this Agreement or to enable any owner of U.S. Securities to
enforce any of its rights that all or any of such parties or owners of U.S.
Securities be licensed, qualified or entitled to do business in India. None
of the U.S. Underwriters will be deemed to be resident, domiciled, carrying
on business or subject to taxation in India by reason of the ownership of
the U.S. Securities or the entry into, performance and/or enforcement of
this Agreement and the transactions contemplated hereby.
Z. The Company is subject to the civil and commercial laws of India with
respect to its obligations under this Agreement, the Deposit Agreement and
the U.S. Securities. The execution and delivery by the Company and the
performance by the Company of its obligations hereunder and thereunder
constitute private and commercial acts rather than governmental or public
acts, and neither the Company nor any of its 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.
AA. The Company has full power, authority and legal right to enter into and
perform its obligations set forth in Section 7 of this Agreement and none of
the provisions of such Section 7 contravene current Indian law.
BB. Each certificate signed by any officer of the Company and delivered to
the U.S. Underwriters or counsel for the U.S. Underwriters shall be deemed
to be a representation and warranty by the Company to the U.S. Underwriters
as to the matters covered thereby.
17.
VII. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter and
their affiliates within the meaning of Section 15 of the Act or Section 20
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as
follows:
1. against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) or the ADS Registration Statement (or any amendment thereto)
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
arising out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary U.S. Prospectus or the U.S. 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 light
of the circumstances under which they were made, not misleading;
2. against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
3. against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch) incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement
thereto).
18.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement and the ADS Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement and the ADS Registration Statement (or any amendment
thereto) or any preliminary prospectus or the U.S. Prospectus ( or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
Merrill Lynch expressly for use in the Registration Statement and the ADS
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
C. Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
19.
D. If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 7(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior the date of such settlement.
E. If the indemnification provided for in this Section is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the U.S. Underwriters on the other hand from this offering
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
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 U.S.
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the Equity
Shares, U.S. Securities and ADRs pursuant to this Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of the Equity Shares, U.S. Securities and ADRs pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, bear to the aggregate initial public
offering price of the ADRs as set forth on such cover.
The relative fault of the Company on the one hand and the U.S. 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 relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statements or omission.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by
20.
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the ADRs underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company and such persons' affiliate, each officer of the
Company who signed the Registration Statement and the ADS Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The U.S. Underwriters' respective
obligations to contribute pursuant to his Section 7 are several in proportion
to the number of Firm Shares to be purchased set forth opposite their respective
names in Schedule I hereto and not joint.
21.
VIII. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. THE SEVERAL OBLIGATIONS OF
THE U.S. UNDERWRITERS TO PURCHASE THE INITIAL U.S. SECURITIES UNDER THIS
AGREEMENT ARE SUBJECT TO THE SATISFACTION OF EACH OF THE FOLLOWING
CONDITIONS:
A. All the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
B. If the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., New York City time,
on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or, to the Company's knowledge, contemplated by the Commission.
C. You shall have received on the Closing Date a certificate dated the
Closing Date, signed by R. Ramaraj and T.R. Santhanakrishnan, in their
capacities as the Chief Executive Officer and Chief Financial Officer of
the Company, confirming the matters set forth in Sections 6(t), 8(a) and
8(b) and that the Company has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be
complied with or satisfied by the Company on or prior to the Closing Date.
D. Since the respective dates as of which information is given in the U.S.
Prospectus other than as set forth in the U.S. Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the
Company, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term
debt of the Company and (iii) the Company shall not have incurred any
liability or obligation, direct or contingent, the effect of which, in any
such case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii), in your
judgment, is material and adverse and, in your reasonable judgment, makes
it impracticable to market the U.S. Securities on the terms and in the
manner contemplated in the U.S. Prospectus.
E. You shall have received on the Closing Date an opinion (satisfactory to
you and United States counsel for the U.S. Underwriters), dated the
Closing Date, of M.G. Ramachandran, Indian counsel for the Company, and
Nishith Desai Associates, Indian counsel to the U.S. Underwriters, to the
effect that:
1. 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 U.S. Prospectus. The
Company has no subsidiaries.
22.
2. The Company has an equity and issued capitalization as set forth
in the U.S. Prospectus and such capitalization complies with Indian law. The
summary of the charter documents and Indian law set forth in the U.S. Prospectus
is accurate and complete in all material respects. The authorized share capital
of the Company (including the Equity Shares, ADSs and the ADRs) conforms to the
description thereof under the headings "Description of Equity Shares" and
"Description of American Depository Shares" in the U.S. Prospectus.
3. The shares of capital stock of the Company outstanding prior to
the issuance of the Equity Shares represented by the U.S. Securities have been
duly and validly authorized, are validly issued and outstanding, are fully paid
and nonassessable, conform to the description thereof contained in the U.S.
Prospectus and, to the best of such counsel's 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 U.S. Securities
and deposited pursuant to the Deposit Agreement in accordance with this
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 this 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 U.S. 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 U.S.
Securities or the ADRs, except as described in the U.S. 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 U.S. Securities, the ADRs and the Deposit
Agreement. The form of certificate for the Equity Shares conforms to the
requirements of Indian law and the charter documents of the Company, and the
U.S. Securities and the ADRs conform to the requirements of the Deposit
Agreement.
4. There are neither any preemptive nor other similar rights to
subscribe for or to purchase any of the Deposited Shares or the U.S. Securities,
or 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.
23.
5. The Company has full power and authority to enter into and perform
its obligations under this 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 the laws of the State of New York by which they are expressed
to be governed, and under the U.S. federal securities laws, 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 Tamil Nadu 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 U.S. Securities and the ADRs
conform to the description thereof in the U.S. 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 U.S.
Securities and the ADRs are in proper legal form for enforcement against the
Company in India. The Depositary and any holder or owner of U.S. Securities 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.
6. 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
U.S. Securities, the deposit of such Equity Shares pursuant to the Deposit
Agreement, the issuance and sale of the U.S. Securities) will not (A) 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,
(B) 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 (C) result in the suspension, termination or revocation
of any authorizations, permits or licenses held by the Company or any other
impairment of the rights of the Company with respect to any such authorization,
permit or license.
7. 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 U.S. Securities,
and the consummation of 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).
24.
8. Each of the Registration Statement, the ADS Registration
Statement, the Rule 462(b) Registration Statement, if any, and the U.S.
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, has been duly executed by the officers
and directors of the Company set forth on the signature pages thereto.
9. 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.
10. Except as described in the U.S. 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 U.S. 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 U.S. Securities or ADRs, (B) the purchase of the U.S. Securities
by the U.S. Underwriters, (C) the sale and delivery by the U.S. Underwriters of
the U.S. Securities 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 U.S. Securities.
11. The indemnification provisions set forth in Section 7 of the
Underwriting Agreement do not contravene Indian law or public policy.
12. Except as described in the U.S. 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 or U.S. Securities 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.
13. 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.
25.
14. The Company has the power to submit, and has taken all necessary
action to submit, to the jurisdiction of any Specified Court (as defined in this
Agreement) and to appoint CT Corporation 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, U.S. Securities 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 such counsel has 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
"Enforcement of Civil Liabilities" in the U.S. Prospectus.
15. 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 U.S. Securities 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.
16. The Company is subject to the civil and commercial laws of India
with respect to its obligations under the Principal Agreements, the U.S.
Securities 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.
17. To the best of such counsel's knowledge after due inquiry, there
are no litigation or governmental proceedings pending or threatened to which the
Company is or could be a party or to which any of its respective property is or
could be subject that are required to be described in the Registration Statement
or the U.S. Prospectus and are not so described, or of any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the U.S. Prospectus or to be filed as exhibits to
the Registration Statement that are not so described or filed as required.
18. To the best of such counsel's 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 U.S.
Prospectus.
26.
19. 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 U.S. 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.
20. The statements (A) in the U.S. Prospectus under the captions
"Enforcement of Civil Liabilities," "Risk Factors--Risks Related to Investments
in Indian Companies," "Risk Factors--Risks Related to the ADSs and Our Trading
Market," "Dividend Policy," "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--Government Regulations,"
"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.
21. To the best of such counsel's knowledge after due inquiry, 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 the
Underwriting Agreement, except for such rights as have been duly waived.
22. It is not necessary (a) in order to enable the U.S. 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 U.S.
Securities 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 U.S. Underwriters or
the Depositary or the holders or owners of U.S. Securities should be licensed,
qualified or entitled to do business in India.
23. None of the U.S. Underwriters, 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, such counsel shall state that it has 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 U.S. Underwriters at which the
contents of the Registration Statement, the ADS Registration Statement, the U.S.
Prospectus, and any supplements or amendments thereto, and related matters were
discussed and, although they 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
U.S. Prospectus (other than as specified above), and any supplements or
amendments thereto, on the basis of the foregoing, nothing has come to their
27.
attention which would lead such counsel to believe that either the Registration
Statement or 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 U.S. 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 (except
that such counsel need not express its belief with respect 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 U.S. Prospectus or any amendments or supplements thereto).
The opinions of M.G. Ramachandran and Nishith Desai Associates
described in Section 8(e) above shall be rendered to you at the request of the
Company and shall so state therein.
28.
F. You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the U.S. Underwriters), dated the
Closing Date, of Latham & Watkins, United States counsel for the Company,
to the effect that:
1. This Agreement has been duly executed and delivered by the
Company.
2. 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.
3. 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 Act, and the Form 8-A Registration Statement has
been declared effective by the Commission under the Exchange Act. To our
knowledge, 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 Act or the Exchange Act, as applicable, and, to the 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 U.S. Prospectus and any supplement thereto pursuant to Rule 424(b) under
the Act has been made in the manner and within the time period required by such
Rule 424(b).
4. The Registration Statement, including any Rule 462(b) Registration
Statement, the ADS Registration Statement, the U.S. Prospectus, and each
amendment or supplement to the Registration Statement and/or the ADS
Registration Statement and the U.S. 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 Act.
5. The U.S. Securities have been approved for inclusion on the Nasdaq
National Market.
6. The statements in the U.S. Prospectus under the captions
"Management--Certain Transactions," and "Taxation--United States Federal
Taxation," 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.
7. To the 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.
29.
8. To the 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.
9. No consent, approval, authorization or other order of, or
registration or filing with, any United States 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 U.S.
Prospectus, except as required under the Act, applicable United States state
securities or blue sky laws and from the NASD (all of which have been made or
obtained and are, to our knowledge, in full force and effect).
10. The execution and delivery of this 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.
11. The Company is not, and after receipt of payment for the U.S.
Securities will not be, an "investment company" within the meaning of Investment
Company Act.
12. The U.S. Securities conform to the requirements of the Deposit
Agreement and the Nasdaq National Market.
In addition, such counsel shall state that it has 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 U.S. Underwriters at which the
contents of the Registration Statement, the ADS Registration Statement, the U.S.
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
U.S. Prospectus (other than as specified above), and any supplements or
amendments thereto, and have not made any independent check or verification
thereof, and, during the course of such participation, no facts have come to
their attention which would cause them to believe that either the Registration
Statement or 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 U.S. Prospectus, as of
its date or at the Closing Date or the Option 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 (except that such
counsel need not express its belief with respect to the financial statements,
notes, schedules or other financial and statistical data derived therefrom,
included in, or omitted from, the Registration
30.
Statement, the ADS Registration Statement or the U.S. Prospectus or any
amendments or supplements thereto).
The opinion of Latham & Watkins described in Section 8(f) above shall
be rendered to you at the request of the Company and shall so state therein.
31.
G. You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the U.S. Underwriters), dated the Closing Date, of
Patterson, Belknap, Webb & Tyler LLP, counsel for the Depositary, to the
effect that:
1. the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and assuming the due authorization, execution and
delivery by the Company, the Deposit Agreement constitutes a valid and binding
obligation of the Depositary, enforceable in accordance with its 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, and
2. when the ADRs have been duly executed and, if applicable,
countersigned, and duly issued and delivered in accordance with the Deposit
Agreement, the U.S. Securities evidenced by the ADRs will be validly issued and
will entitle the registered holders thereof to the rights specified in the ADRs
and the Deposit Agreement.
H. You shall have received on the Closing Date an opinion, dated the
Closing Date, of Brobeck, Phleger & Harrison, LLP, United States counsel
for the U.S. Underwriters, to the effect that:
1. The statements in the U.S. Prospectus under the caption
"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, have been reviewed by such counsel and fairly
present and summarize, in all material respects, the matters referred to
therein.
2. 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 Act, and the Form 8-A Registration Statement has
been declared effective by the Commission under the Exchange Act. To our
knowledge, 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 Act or the Exchange Act, as applicable, and, to the 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 U.S. Prospectus and any supplement thereto pursuant to Rule 424(b) under
the Act has been made in the manner and within the time period required by such
Rule 424(b).
3. The Registration Statement, including any Rule 462(b) Registration
Statement, the ADS Registration Statement, the U.S. Prospectus, and each
amendment or supplement to the Registration Statement and/or the ADS
Registration Statement and the U.S. 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 Act.
32.
4. To the knowledge of such counsel, there are no litigation or
governmental proceedings pending or threatened to which the Company is or could
be a party or to which any of its property is or could be subject that are
required to be described in the Registration Statement or the U.S. Prospectus
and are not so described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
U.S. Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
In addition, such counsel shall state that it has 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 U.S. Underwriters at which the
contents of the Registration Statement, the ADS Registration Statement, the U.S.
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
U.S. Prospectus (other than as specified above), and any supplements or
amendments thereto, and have not made any independent check or verification
thereof, and, during the course of such participation, no facts have come to
their attention which would cause them to believe that either the Registration
Statement or 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 U.S. Prospectus, as of
its date or at the Closing Date or the Option 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 (except that such
counsel need not express its belief with respect to the financial statements,
notes, schedules or other financial and statistical data derived therefrom,
included in, or omitted from, the Registration Statement, the ADS Registration
Statement or the U.S. Prospectus or any amendments or supplements thereto).
In giving such opinions with respect to Section 8(i)(ii) Brobeck,
Phleger & Harrison LLP may state that its opinion and belief are based upon
their participation in the preparation of the Registration Statement, the ADS
Registration Statement and U.S. Prospectus, and any amendment or supplements
thereto, and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
33.
I. You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may
be, in form and substance reasonably satisfactory to you, from KPMG Peat
Marwick, India, independent public accountants, containing the information
and statements of the type ordinarily included in accountants' "comfort
letters" to U.S. Underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the U.S. Prospectus.
J. The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
K. The U.S. Securities shall have been duly listed for quotation on the
Nasdaq National Market.
L. The Deposit Agreement shall be in full force and effect. The Depositary
shall have furnished or caused to be furnished to you certificates
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 U.S. Securities to be delivered by the Company
at the Closing Date; (y) the execution, issuance, signature and delivery
of ADRs evidencing the U.S. Securities pursuant to the Deposit Agreement;
and (z) such other matters related thereto as you may reasonably request.
M. The Company shall not have failed on or prior to the Closing Date to
perform or comply in any material respect with any of the agreements
herein contained and required to be performed or complied with by the
Company on or prior to the Closing Date.
The several obligations of the U.S. Underwriters to purchase any U.S.
Option Securities hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you may reasonably request with respect
to the good standing of the Company, the due authorization and issuance of such
U.S. Option Securities and other matters related to the issuance of such U.S.
Option Securities.
IX. EFFECTIVENESS OF AGREEMENT AND TERMINATION. THIS AGREEMENT SHALL BECOME
EFFECTIVE UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE PARTIES
HERETO.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the U.S. Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as on
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
India or in the United States, Asian or international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the U.S. Underwriters,
impracticable to market the ADRs or to enforce contracts for
34.
the sale of the ADRs, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission, the Nasdaq National
Market or any Indian authority, or if trading generally on the Nasdaq National
Market or any Indian exchange has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any such exchange or by such system or by order of
the Commission, the NASD or any other U.S. or Indian governmental authority, or
(iv) if a banking moratorium has been declared by either Indian, U.S. federal or
New York authorities, or (v) if exchange controls have been imposed by India on
the U.S. dollar, or (vi) if there is a change, or an official announcement by a
competent authority of a prospective change, in Indian or U.S. taxation
adversely affecting the Company, the Equity Shares, the ADRs or the U.S.
Securities or the transfer thereof.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the U.S. Underwriters shall fail or refuse to purchase
the Initial U.S. Securities or U.S. Option Securities, as the case may be, which
it has or they have agreed to purchase hereunder on such date and the aggregate
number of Initial U.S. Securities or U.S. Option Securities, as the case may be,
which such defaulting Underwriter or U.S. Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the total number of Initial
U.S. Securities or U.S. Option Securities, as the case may be, to be purchased
on such date by all U.S. Underwriters, each non-defaulting Underwriter shall be
obligated severally, in the proportion which the number of Initial U.S.
Securities set forth opposite its name in Schedule I bears to the total number
of Initial U.S. Securities which all the non-defaulting U.S. Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Initial U.S. Securities or U.S. Option Securities, as the case may be, which
such defaulting Underwriter or U.S. Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Initial
U.S. Securities or U.S. Option Securities, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Initial U.S. Securities or U.S. Option Securities, as the case may be, without
the written consent of such Underwriter. If on the Closing Date any Underwriter
or U.S. Underwriters shall fail or refuse to purchase Initial U.S. Securities
and the aggregate number of Initial U.S. Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Initial U.S.
Securities to be purchased by all U.S. Underwriters and arrangements
satisfactory to you and the Company for purchase of such Initial U.S. Securities
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the Company.
In any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the U.S. Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
U.S. Underwriters shall fail or refuse to purchase Additional U.S. Securities
and the aggregate number of U.S. Option Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of U.S. Option
Securities to be purchased on such date, the non-defaulting U.S. Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such U.S. Option Securities or (ii) purchase not less than the number of U.S.
Option Securities that such non-defaulting U.S. Underwriters would have been
obligated to purchase on such date in the absence of such default.
35.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
X. MISCELLANEOUS. NOTICES GIVEN PURSUANT TO ANY PROVISION OF THIS AGREEMENT
SHALL BE ADDRESSED AS FOLLOWS: (I) IF TO THE COMPANY, TO SATYAM INFOWAY
LIMITED, MAANASAROVAR TOWERS, 271-A, ANNA SALAI, TEYNAMPET, CHENNAI 600 015
INDIA, ATTENTION: CHIEF EXECUTIVE OFFICER, WITH A COPY TO LATHAM & WATKINS,
135 COMMONWEALTH DRIVE, MENLO PARK, CA 94025, ATTENTION: ANTHONY J. RICHMOND,
ESQ., AND (II) IF TO ANY UNDERWRITER OR TO YOU, TO YOU C/O MERRILL LYNCH &
CO., NORTH TOWER, WORLD FINANCIAL CENTER, NEW YORK, NEW YORK 10281-1201,
ATTENTION: SYNDICATE DEPARTMENT, OR IN ANY CASE TO SUCH OTHER ADDRESS AS THE
PERSON TO BE NOTIFIED MAY HAVE REQUESTED IN WRITING.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several U.S. Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the U.S.
Securities, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or directors of
any Underwriter, any person controlling any Underwriter, the Company, the
officers or directors of the Company or any person controlling the Company, (ii)
acceptance of the U.S. Securities and payment for them hereunder. The
respective agreements, covenants and indemnities set forth in Section 7 shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
If for any reason the U.S. Securities or ADRs are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 9), the Company agrees to
reimburse the several U.S. Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Company also agrees to reimburse the several U.S. Underwriters, their
directors and officers and any persons controlling any of the U.S. Underwriters
for any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the U.S.
Underwriters, the U.S. Underwriters' directors and officers, any controlling
persons referred to herein, the Company's directors and the Company's officers
who sign the Registration Statement and their respective successors and assigns,
all as and to the extent provided in this Agreement, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the U.S.
Securities from any of the several U.S. Underwriters merely because of such
purchase.
36.
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.
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 New York or the courts of the State of New York in each case
located in the City and County of New York (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 New York office at
1633 Broadway, New York, New York 10019, 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 New York.
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.
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,
37.
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 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.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
38.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several U.S. Underwriters.
Very truly yours,
SATYAM INFOWAY LIMITED
By:
_____________________________
Name:
Title:
MERRILL LYNCH & CO.
Salomon Smith Barney
By: MERRILL LYNCH & CO.
By:
--------------------
39.
SCHEDULE I
----------
U.S. Underwriters Number of Firm Shares
- ----------------- to be Purchased
---------------
Merrill Lynch & Co.
Salomon Smith Barney
Total
-----
Annex I
-------
[Insert names of stockholders of the Company who will be required to sign lock
ups]