<PAGE>
As filed with the Securities and Exchange Commission on March 4, 1999
Registration No. 333-72199
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM F-6
REGISTRATION STATEMENT
Under
The Securities Act of 1933
For American Depositary Shares Evidenced by
American Depositary Receipts
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INFOSYS TECHNOLOGIES LIMITED
(Exact name of issuer of deposited securities as specified in its charter)
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Not Applicable
(Translation of issuer's name into English)
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Republic of India
(Jurisdiction of incorporation or organization of issuer)
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BANKERS TRUST COMPANY
(Exact name of depositary as specified in its charter)
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130 Liberty Street
One Bankers Trust Plaza
New York, NY 10006
Telephone (212) 250-4966
(Address, including zip code, and telephone number, including area code, of
depositary's principal executive offices)
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CT Corporation System
49 Stevenson Street, Suite 900
San Francisco, CA 94105
Telephone: (415) 227-0763
(Address, including zip code, and telephone number, including area code, of
agent for service)
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Copies to:
Jeffrey D. Saper, Esq. Drew D. Salvest, Esq.
Michael J. Danaher, Esq. Joanna Hancock, Esq.
Raju S. Judge, Esq. DEWEY BALLANTINE
WILSON SONSINI GOODRICH & ROSATI 1 Undershaft
Professional Corporation London EC3A 8LP
650 Page Mill Road United Kingdom
Palo Alto, California 94304-1050 +44-171-456-6000
(650) 493-9300
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It is proposed that this filing become effective under Rule 466 (check
appropriate box)
[_]immediately upon filing
[_]on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box. [X]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The Prospectus consists of the proposed form of American Depositary Receipt
included as Exhibit A to the Form of Deposit Agreement filed as Exhibit (a) to
this Registration Statement, which is incorporated herein by reference.
This Registration Statement may be executed in any number of counterparts,
each of which shall be deemed an original, and all of such counterparts shall
constitute one and the same instrument.
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<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
<TABLE>
<CAPTION>
Location in form of
American Depositary Receipt ("Receipt")
Item Number and Caption Filed Herewith as Prospectus
- ----------------------- ----------------------------------------
<S> <C>
Item 1. Description of Securities to
be Registered
1. Name of depositary and address of Face of Receipt, introductory paragraph
its principal executive office and bottom
2. Title of American Depositary
Receipts and identification of
deposited securities
Terms of deposit:
(i) the amount of deposited Face of Receipt, introductory paragraph,
securities represented by one upper right hand corner
unit of American Depositary
Receipts;
(ii) the procedure for voting, if Reverse of Receipt, Articles 15 and 16
any, the deposited securities;
(iii) the collection and Reverse of Receipt, Article 12
distribution of dividends;
(iv) the transmission of notices, Face of Receipt, Article 11; Reverse of
reports and proxy soliciting Receipt, Article 15
material;
(v) the sale or exercise of rights; Reverse of Receipt, Article 13
(vi) the deposit or sale of Face of Receipt, Article 3; Reverse of
securities resulting from Receipt, Articles 12 and 17
dividends, splits or plans of
reorganization;
(vii) amendment, extension or Reverse of Receipt; Articles 20 and 21
termination of the deposit (no provision for extension)
agreement;
(viii) rights of holders of Reverse of Receipt, Article 11
Receipts to inspect the
transfer books of the
depositary and the list of
holders of Receipts;
(ix) restrictions upon the right to Face of Receipt, Articles 2, 4 and 6
deposit or withdraw the
underlying securities;
(x) limitation upon the liability Reverse of Receipt, Articles 13, 18 and
of depositary 21
3.Fees and Charges Face of Receipt, Article 7
Item 2. Available Information
Upon declaration of the Face of Receipt, Article 11
effectiveness of the Registration
Statement, Infosys Technologies
Limited will be subject to the
periodic reporting requirements of
the Securities Exchange Act of
1934, and, accordingly, will file
certain reports with the Commission
and such reports can be inspected
by holders of American Depositary
Receipts and copied at public
reference facilities maintained by
the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549; and at the
regional offices of the Commission
at Seven World Trade Center, 13th
Floor, New York, New York 10098;
and at Northeastern Atrium Center,
500 West Madison Street, Suite
1400, Chicago Illinois 60661-2511.
Copies of such materials can be
obtained from the Public Reference
Section of the Commission, 450
Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. The
Commission also maintains a web
site at http://www.sec.gov that
contains reports, proxy and other
information statements and other
information regarding registrants,
such as Infosys Technologies
Limited, that make electronic
filings with the Commission.
</TABLE>
2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Exhibits
(a) Form of Deposit Agreement (including the Form of American Depositary
Receipt) (the "Deposit Agreement") among Infosys Technologies Limited, Bankers
Trust Company, as Depositary (the "Depositary") and all holders and beneficial
owners from time to time of American Depositary Receipts issued thereunder
("ADRs").
(b) None.
(c) None.
(d) Opinion of counsel for the Depositary, as to the legality of the
securities being registered.
(e) Not Applicable.
(f) Powers of Attorney.
Item 4. Undertakings
(a) The Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by holders of
the ADRs, any reports and communications received from the issuer of the
deposited securities which are both (1) received by the Depositary as the
holder of such deposited securities; and (2) made generally available to the
holders of the underlying securities by the issuer.
(b) If the amounts of fees charged are not disclosed in the prospectus, the
Depositary undertakes to prepare a separate document stating the amount of any
fee charged and describing the service for which it is charged and to deliver
promptly a copy of such fee schedule without charge to anyone upon request.
The Depositary undertakes to notify each registered holder of an ADR at least
thirty days before any change in the fee schedule.
II-1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
Bankers Trust Company, on behalf of the legal entity created by the Deposit
Agreement among Infosys Technologies Limited, Bankers Trust Company and the
holders of American Depositary Receipts issued thereunder, certifies that it
has reasonable grounds to believe that all the requirements for filing on Form
F-6 are met and has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in London, United Kingdom on March 4, 1999.
Legal entity created by Deposit
Agreement for the issuance of American
Depositary Receipts evidencing
American Depositary Shares each
representing one-half of one Equity
Share, par value Rs.10 each, of
Infosys Technologies Limited.
BANKERS TRUST COMPANY
As Depositary
By: /s/ Mark A. Evans
------------------------------------
Name: Mark A. Evans
Title: Assistant Treasurer
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-6 and has duly caused this Amendment No. 1
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Massachusetts on March 4,
1999.
Infosys Technologies Limited
/s/ N.R. Narayana Murthy
By: _________________________________
N.R. Narayana Murthy,
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1934, this Amendment
No. 1 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ N.R. Narayana Murthy Chairman of the Board and Chief March 4, 1999
____________________________________ Executive Officer (Principal
N.R. Narayana Murthy Executive Officer)
* Senior Vice President and Head- March 4, 1999
____________________________________ Finance and Administration
T.V. Mohandas Pai (Principal Financial and
Accounting Officer)
* Managing Director (Director, March 4, 1999
____________________________________ President and Chief Operating
Nandan M. Nilekani Officer)
* Director March 4, 1999
____________________________________ (Director and Executive Officer)
K. Dinesh
* Deputy Managing Director March 4, 1999
____________________________________ (Director and Executive Officer)
S. Gopalakrishnan
* Joint Managing Director March 4, 1999
____________________________________ (Director and Executive Officer)
N.S. Raghavan
* Director March 4, 1999
____________________________________ (Director and Executive Officer)
S.D. Shibulal
* Director March 4, 1999
____________________________________
Susim M. Datta
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
* Director March 4, 1999
____________________________________
Deepak Satwalekar
* Director March 4, 1999
____________________________________
Marti G. Subrahmanyam
* Director March 4, 1999
____________________________________
Ramesh Vangal
* Authorized Representative in March 4, 1999
____________________________________ the United States (Executive
Phaneesh Murthy Officer)
</TABLE>
/s/ N.R. Narayana Murthy
*By: -------------------------------
Attorney-in-Fact
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit Number
Description of Document
*(a) Form of Deposit Agreement (including the Form of American Depositary
Receipt) the "Deposit Agreement") among Infosys Technologies Limited,
Bankers Trust Company, as Depositary, and all holders and Beneficial
Owners from time to time of American Depositary Receipts issued
thereunder.
+(d) Opinion of counsel for the Depositary, as to the legality of the
securities being registered.
+(f) Powers of Attorney. Reference is made to page II-3.
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*Amended herewith.
+Previously filed.
<PAGE>
Exhibit 99.A
INFOSYS TECHNOLOGIES LIMITED
and
BANKERS TRUST COMPANY,
As Depositary
and
REGISTERED HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE I DEFINITIONS.......................................... 1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS......... 4
ARTICLE III CERTAIN OBLIGATIONS OF REGISTERED HOLDERS OF RECEIPTS 13
ARTICLE IV THE DEPOSITED SECURITIES............................. 14
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY........ 24
ARTICLE VI AMENDMENT AND TERMINATION............................ 31
ARTICLE VII MISCELLANEOUS........................................ 32
</TABLE>
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of 1999, among INFOSYS TECHOLOGIES LIMITED,
a company organized under the laws of the Republic of India and its successors
(hereinafter referred to as the "Company"), BANKERS TRUST COMPANY, a corporation
duly incorporated and existing under the laws of the State of New York, United
States of America, as Depositary and any successor as depositary hereunder
(hereinafter referred to as the "Depositary"), and all Registered Holders and
Beneficial Owners from time to time of American Depositary Receipts (as
hereinafter defined) issued hereunder.
W I T N E S E T H:
-----------------
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent for the Depositary, for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of American Depositary
Receipts evidencing American Depositary Shares representing the Shares so
deposited; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement and as shall be
specified in and pursuant to any resolution of the Company's Board of Directors
not inconsistent with the terms of this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.01. "Affiliate" shall have the meaning assigned to it under
Regulation C of the Securities Act as hereinafter defined.
Section 1.02. "American Depositary Receipt" or "Receipt" means a
receipt issued pursuant to this Deposit Agreement in substantially the form of
Exhibit A hereto evidencing American Depositary Shares representing Deposited
Securities.
Section 1.03. "American Depositary Shares" means the securities
evidenced by the Receipts issued hereunder and the rights and interests in the
Deposited Securities represented thereby. Each American Depositary Share shall
represent one-half of one Share until there shall occur a distribution upon
Deposited Securities covered by Section 4.03 or a change in Deposited
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<PAGE>
Securities covered by Section 4.08 with respect to which additional Receipts are
not executed and delivered, and thereafter American Depositary Shares shall
represent the amount of Shares or Deposited Securities specified in such
Sections.
Section 1.04. "Beneficial Owner" means any person who has a
beneficial interest in any American Depositary Shares evidenced by any Receipt.
Section 1.05. "Business Day" means any day on which banks in both New
York and India are not required or authorized by law to close.
Section 1.06. "Commission" means the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
Section 1.07. "Company" means Infosys Technologies Limited, a company
organized under the laws of the Republic of India having its principal executive
office at Electronics City, Hosur Road, Bangalore, Karnataka, India 561 229, and
its successors.
Section 1.08. "Corporate Trust Office," when used with respect to the
Depositary, means the office of the Depositary at which its corporate trust
business shall, at any particular time, be principally administered, which
office is, at the date of this Deposit Agreement, Four Albany Street, New York,
New York 10006.
Section 1.09. "Custodian" means, at the date of this Deposit
Agreement, ICICI Limited, and any other firm or corporation which may be
appointed by the Depositary, with notice to the Company, as a substitute or
additional custodian hereunder pursuant to the terms of Section 5.05 and shall
also mean all of them collectively.
Section 1.10. "deposit", "surrender", "transfer", "withdraw" or
"delivery" mean, when used in respect of Shares, where the context requires, an
entry or entries or an electronic transfer or transfers in an account or
accounts maintained by institutions authorized under Indian law to effect
transfers of securities, and not to the physical transfer of certificates
representing the Shares.
Section 1.11. "Deposit Agreement" means this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
Section 1.12. "Depositary" means Bankers Trust Company, a corporation
incorporated and existing under the laws of the State of New York, and any
successor as depositary hereunder pursuant to the terms of Section 5.04.
Section 1.13. "Deposited Securities" as of any time means Shares at
such time deposited or deemed to be deposited (including any Shares deposited
pursuant to Section 2.10 hereof) under this Deposit Agreement and any and all
other securities, property and cash received by the Depositary or the Custodian
in respect or in lieu of such Shares deposited or deemed to be deposited and at
such time held hereunder, subject with respect to cash to the provisions of
2
<PAGE>
Section 4.05 except for any such securities, property or cash as shall have been
distributed to Registered Holders pursuant to sections 4.01, 4.02, 4.03, 4.04 or
4.05.
Section 1.14. "Dollars" or "$" means United States Dollars or such
other currency which is legal tender in the United States of America.
Section 1.15. "Foreign Registrar" means the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of the Shares.
Section 1.16. "India" means the Republic of India.
Section 1.17. "Initial Deposit" means the deposit of Shares with the
Custodian by the Company pursuant to this Deposit Agreement and the Underwriting
Agreement between the Company and the Underwriters named therein dated
1999.
Section 1.18. "Registered Holder" means the person in whose name a
Receipt is registered on the books of the Depositary or the Registrar, if any,
maintained for such purpose.
Section 1.19. "Registrar" means the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
appointed by the Depositary, subject to the approval by the Company, such
approval not to be unreasonably withheld, to register Receipts and transfers of
Receipts are herein provided, and shall include any co-registrar appointed by
the Depositary, upon the request or with the approval of the Company, for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary upon the request or with the approval of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
Section 1.20 "Regulation S" means Regulation S under the Securities
Act.
Section 1.21. "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its Affiliates in a transaction or chain of transactions not
involving any public offering or which are subject to resale limitations under
the Securities Act, as defined below, or which are held by an officer, director
(or persons performing similar functions) or other Affiliate of the Company, or
which are subject to other restrictions on sale or deposit under the laws of the
United States or India, or under a shareholder agreement or the corporate
charter of the Company or under the regulations of an applicable securities
exchange.
Section 1.22. "Rule 144A" means Rule 144A under the Securities Act,
as from time to time amended.
Section 1.23 "Rupees" and "Rs" means the lawful currency of the
Republic of India.
3
<PAGE>
Section 1.24. "Securities Act" means the United States Securities
Act of 1933, as from time to time amended.
Section 1.25. "Securities Exchange Act" means the United States
Securities Exchange Act of 1934, as from time to time amended.
Section 1.26. "Shares" means the equity shares in registered form of
the Company, nominal value Rs 10 each, validly issued and outstanding and fully
paid, nonassessable and free of any preemptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding
Shares or interim certificates representing such Shares; provided, further, that
-------- -------
if there shall occur any change in par or nominal value, a split-up or
consolidation or any other reclassification or, upon the occurrence of any event
described in Section 4.08, an exchange or conversion in respect of the Shares,
the term "Shares" shall thereafter represent the successor securities resulting
from such change in par or nominal value, split-up, consolidation or such other
reclassification or such exchange or conversion. References to Shares shall
include evidence of rights to receive Shares, whether or not stated in the
particular instance; provided, however, that in no event shall Shares include
-------- -------
evidence of rights to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised.
Section 1.27. "United States" shall have the meaning assigned to it
under Regulation S under the Securities Act.
In this Deposit Agreement, where the context so permits, words
importing the singular number only shall include the plural number and vice
versa, words importing the masculine gender shall include the feminine gender
and vice versa and words importing persons shall include firms, partnerships,
trusts and corporations.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
Section 2.01. Form and Transferability of Receipts. American
------------------------------------
Depositary Shares shall be evidenced by definitive Receipts which shall be
printed or lithographed or shall be in such other form as may be agreed upon by
the Company and the Depositary, and in any event shall be substantially in the
form set forth in Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary; provided,
--------
however, that such signature may be a facsimile if a Registrar for the Receipts
- -------
shall have been appointed and such Receipts are countersigned by the manual
signature of a duly authorized officer of the Registrar. The Depositary shall
maintain books, as hereinafter
4
<PAGE>
provided, on which each Receipt so signed and delivered and the transfer of each
such Receipt shall be registered. Receipts bearing the manual or facsimile
signature of a duly authorized officer of the Depositary who was at any time a
proper signatory of the Depositary, shall bind the Depositary, notwithstanding
that such signatory has ceased to hold such office prior to the execution and
delivery of such Receipts by the Registrar or did not hold such office at the
date of issuance of such Receipts.
The Receipts may, with the prior written consent of the Company (which
consent shall not be unreasonably withheld), and upon the written request of the
Company, shall be endorsed with or have incorporated in the text thereof such
legends or recitals or changes, including requirements with respect to
registration of transfer, not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary or the Company to perform their
obligations hereunder or as may be required to comply with any applicable laws
or regulations or with the rules and regulations of any securities exchange upon
which the Receipts or the American Depositary Shares may be listed, or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date or manner of issuance of the underlying Deposited Securities
or otherwise, including by reason of the issuance of Receipts or the underlying
Deposit Securities in transactions exempt from the registration requirements of
the Securities Act.
The Receipts shall bear a CUSIP number that is different from any
CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company which are not Receipts
issued hereunder.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), subject to any limitations set forth in such Receipt, when properly
endorsed or accompanied by a properly executed instrument of transfer and
transferred in accordance with the terms of this Deposit Agreement, including,
without limitation, Sections 2.04 and 2.07, shall be transferable by delivery,
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that until a Receipt shall be
-------- -------
transferred on the books of the Depositary as provided in Section 2.04 hereof,
the Company and the Depositary, notwithstanding any notice to the contrary, may
treat the Registered Holder thereof at such time as the absolute owner thereof
for the purpose of determining the person entitled to distribution of dividends
or other distributions or to any notice provided for in this Deposit Agreement
and for all other purposes, and neither the Depositary nor the Company shall
have any obligation or be subject to any liability under this Deposit Agreement
to any Beneficial Owner or holder of a Receipt unless such Beneficial Owner or
holder is the Registered Holder thereof.
Section 2.02. Deposit of Shares. Subject to the terms and conditions
-----------------
of this Deposit Agreement, the deposit of Shares shall be made by transfer of
Shares to the Custodian for the account of the Depositary maintained for that
purpose. Shares (other than Restricted Securities) may be deposited by delivery
thereof to the Custodian, accompanied by an appropriate instrument or
instruments of transfer or endorsement, in a form satisfactory to such Custodian
together with (i) all such certifications as may be required by the provisions
of this Deposit
5
<PAGE>
Agreement and (ii) a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, as promptly as practicable, a Receipt or Receipts for the number of
American Depositary Shares representing the Shares as deposited.
No Share shall be accepted for deposit unless accompanied by (a)
payment in respect of any applicable taxes or duties, and (b) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that any
necessary exemption is in force or approval has been granted by, or there has
been compliance with the rules and regulations of, the governmental agency in
India, if any, which is then performing the function of the regulation of
currency exchange. Unless current applicable law changes, once withdrawn from
the depository facility, Shares may not be redeposited.
If required by the Depositary, Shares presented for deposit at any
time, including deposit by electronic transfer, whether or not the transfer
books of the Company or the Foreign Registrar, if applicable, are closed, shall
also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Custodian or their respective nominees of any dividend, or right to
subscribe for additional Shares or right to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
in respect of such deposited Shares, or, in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, evidence that Shares have been
electronically transferred or that irrevocable instructions have been given to
cause the transfer of such Shares to the account of the Custodian together with
the other instruments herein specified, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder together with the other documents above
specified, such Custodian shall, as soon as registration of transfer can be
accomplished, present such certificate or certificates together with the
appropriate instrument or instruments of transfer or endorsement, to the Company
or the Foreign Registrar, if applicable, for registration of transfer and
recordation of the Shares or other Deposited Securities being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee at the
cost and expense of the person making such deposit (or for whose benefit such
deposit is made) and shall obtain evidence satisfactory to it of such
registration.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary, the Custodian or any of
their nominees (on behalf of Registered Holders) at the principal office of a
Custodian, or at such other place or places as the Depositary shall determine.
After the Initial Deposit, unless otherwise agreed by the Depositary
and the Company and permitted by applicable law, only the following may be
deposited under this Deposit Agreement: (i) Shares issued as a dividend or free
distribution in respect of deposited
6
<PAGE>
securities; (ii) Shares subscribed for or acquired by holders from the Company
through the exercise of rights distributed by the Company to such persons in
respect of Deposited Securities; and (iii) securities issued by the Company to
the holders in respect of Deposited Securities as a result of any change in par
value, subdivision, consolidation and other reclassification of deposited
securities or otherwise. The Company must inform the Depositary if any shares
issued by it which may be deposited, do not, by reason of the date of issue or
otherwise, rank pari passu in all respects with the other deposited securities.
The Depositary agrees to instruct the Custodian to place all Shares
and any other securities which are Deposited Securities accepted for deposit
under this Deposit Agreement into an account or accounts that are segregated and
separate from the account in which any Shares or any other securities of the
Company may be held by such Custodian under any other depositary receipt
facility pursuant to which depositary receipts evidencing depositary shares
representing Shares are issued.
The Depositary and the Custodian will refuse to accept Shares for
deposit whenever the Depositary is notified in writing that the Company has
restricted transfer of shares if such transfer would result in the ownership of
the Shares being in violation of any applicable laws or the Memorandum and
Articles of Association of the Company.
Shares may not be deposited by persons located in India, resident of
India or for, on the account of, such persons (except that Shares may be
deposited by the Company and the Custodian).
Section 2.03. Execution and Delivery of Receipts. Upon receipt by
----------------------------------
any Custodian of any deposit in accordance with the provisions of Section 2.02
hereof (and, in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company or the
Foreign Registrar, as the case may be, that any Deposited Securities have been
recorded upon the books of the Company or the Foreign Registrar, if applicable,
in the name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as specified above, such Custodian
shall notify the Depositary of such deposit and of the name or names of the
person or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof, the office of the Depositary at which such
Receipts are to be delivered and the number of American Depositary Shares to be
evidenced thereby. Such notification shall be made at the request, risk and
expense of the person making the deposit in writing and mailed, first class air
mail postage prepaid, or, by SWIFT message, cable, or telex or facsimile
transmission.
Upon receiving such notice from such Custodian, or upon receipt of
such Shares by the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver at its Corporate
Trust Office to or upon the order of the person or persons entitled thereto, a
Receipt or Receipts registered in such name or names as requested by such
persons or persons entitled thereto evidencing the number of American Depositary
Shares requested by such person or persons but only upon payment to the
Depositary of the fees of the Depositary for the execution and delivery of such
Receipt or Receipts as provided in Section 5.09
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<PAGE>
hereof and Exhibit B hereto, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities. Delivery at offices other than the Depositary's Corporate Trust
Office shall be at the risk and expense of the person requesting such delivery.
Section 2.04. Transfer of Receipts. Subject to the terms and
--------------------
conditions of this Deposit Agreement, the Depositary or the Registrar, if any,
shall promptly register transfers of Receipts on its transfer books from time to
time, upon any surrender at its designated transfer offices of a Receipt by the
Registered Holder thereof in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer, and duly
stamped as may be required by the laws of the State of New York, of the United
States of America and any other applicable law. Thereupon the Depositary shall
execute and, if the Depositary's signature is by facsimile, the Registrar shall
manually countersign a new Receipt or Receipts and deliver the same to or upon
the order of the person entitled thereto evidencing the same aggregate number of
American Depositary Shares as those evidenced by the Receipts surrendered.
The Depositary, upon the written request of the Company, shall, or
with the written approval not to be unreasonably withheld of the Company, may,
appoint one or more co-transfer agents for the purpose of effecting transfers
(or combinations and split-ups as under Section 2.05 hereof) of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Registered Holders, Beneficial
Owners or other persons entitled to Receipts and will be entitled to protection
and indemnity to the same extent as the Depositary.
Section 2.05. Combinations and Split-ups of Receipts. Upon surrender
--------------------------------------
of a Receipt or Receipts at the Depositary's designated transfer offices for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and, if the Depositary's signature is by facsimile, the Registrar
shall manually countersign and deliver a new Receipt or Receipts for the number
of American Depositary Shares requested, evidencing the same aggregate number of
American Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.06. Surrender of Receipts and Withdrawal of Shares. Upon
----------------------------------------------
surrender of Receipts at the Depositary's Corporate Trust Office, or at such
other offices as the Depositary may designate, for the purpose of withdrawal of
the Deposited Securities represented by the American Depositary Shares evidenced
thereby, and upon payment of the fees and expenses of the Depositary for the
cancellation of Receipts as provided in Section 5.09 hereof and Exhibit B hereto
and payment of all expenses, taxes, duties and charges payable by the
Depositary, and Agent or the Custodian in connection with any of the foregoing,
including, but not limited to, such customary expenses as are incurred by the
Depositary in the conversion of currencies other than U.S. dollars into U.S.
dollars and fees imposed by any governmental or regulatory authority payable in
connection with such surrender and withdrawal of the Deposited Securities, and
subject to the terms and conditions of the Company's Memorandum and Articles of
Association, the Deposited Securities and this Deposit Agreement, and to any
other restriction applicable thereto, the Registered Holder of such Receipts
shall be entitled to delivery, to him or upon his
8
<PAGE>
order, of the Shares and any other Deposited Securities at the time represented
by the American Depositary Shares evidenced by such Receipts. Delivery of such
Shares and other Deposited Securities may be made by (i) the delivery of
certificates in the name of the Registered Holder or as ordered by him which, if
required by law, shall be properly endorsed or accompanied by properly executed
instruments of transfer to such Registered Holder or as ordered by him or (ii)
book-entry transfer of Shares represented by the American Depositary Shares
evidenced by such Receipt to an account in the name of the Registered Holder or
as ordered by him and (b) the delivery at the office of the Custodian of any
other securities, property and cash to which such Registered Holder is then
entitled in respect of such Receipts to such Registered Holder or as ordered by
him. Such delivery shall be made, as hereinafter provided, without unreasonable
delay.
Receipts surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank, and if the Depositary so requires, the
Registered Holder thereof shall execute and deliver to the Depositary a written
order directing the Depositary to cause the Shares and any other Deposited
Securities being withdrawn to be delivered to or upon the written order of a
person or persons designated in such order. Thereupon the Depositary shall
direct the Custodian to deliver at the designated office of the Custodian,
subject to Sections 2.07, 3.01 and 3.02, and to the other terms and conditions
of this Deposit Agreement, the Memorandum and Articles of Association of the
Company, the provisions of governing Deposited Securities and applicable laws
now or hereinafter in effect, to or upon the written order of the person or
persons designated in the order delivered to the Depositary as above provided,
the amount of Shares and any other Deposited Securities represented by such
Receipts or evidence of the electronic transfer thereof (if available), as the
case may be, to or for the account of such person, except that the Depositary
may make delivery to such person or persons at its Corporate Trust Office or at
such other place as may have been designated for such purpose by the Depositary
of any dividends or distributions with respect to the Shares and any other
Deposited Securities represented by such Receipts, or of any proceeds of sale of
any such dividends, distributions or rights, which may at the time be held by
the Depositary. Such direction shall be given by letter or, at the risk and
expense of the Registered Holder, by cable, telex or facsimile transmission.
At the request, risk and expense of any Registered Holder so
surrendering Receipts, and for the account of such Registered Holder, provided
that payment of any applicable tax or other governmental charge shall have been
made in accordance with Section 3.02 the Depositary shall direct the Custodian
to forward any cash or other property (other than rights) and the certificate or
certificates and other proper documents of title for the amount of Shares and
any other Deposited Securities represented by such Receipts for delivery at its
Corporate Trust Office or at such other place as may be reasonably requested by
the Registered Holder. Such direction shall be given at the risk and expense of
such Registered Holder in writing and mailed, first class air mail postage
prepaid, or by SWIFT message, cable, telex or facsimile transmission.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the
9
<PAGE>
Depositary shall cause ownership of the appropriate whole number of Shares to be
recorded in the name of the Registered Holder surrendering such Receipt, and
shall issue and deliver to the person surrendering such Receipt a new Receipt
evidencing American Depositary Shares representing any remaining fractional
Share.
A stamp duty of 0.5 percent of the market value of the Shares will be
charged in respect of any withdrawal of Shares and such stamp duty will be
payable by the relevant holder. In addition, it will be necessary to obtain the
approval of the Reserve Bank of India for withdrawal of Shares or for the
Company to register Shares in the name of a person who is not a resident of
India upon such withdrawal. Any subsequent transfer by the Registered Holder
after withdrawal will require the approval of the Reserve Bank of India, which
approval must be obtained by the purchaser and the Company under Section
29(1)(b) and 19(4), respectively, of the Foreign Exchange Regulation Act, 1973.
Section 2.07. Limitations on Execution and Delivery, Registration of
------------------------------------------------------
Transfer and Surrender of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration of transfer, split-up, combination or surrender of
any Receipt, the delivery of any distribution thereon, or withdrawal of any
Deposited Securities, the Depositary, the Company, the Custodian and the Foreign
Registrar, if applicable, may require payment from the depositor of Shares or
the presenter of the Receipt of a sum sufficient to pay for (i) any tax or other
governmental charge and any stock transfer or registration fees in respect of
Receipts, (ii) any tax or other governmental charge and any stock transfer or
registration fees in respect of registration of transfers of Shares or other
Deposited Securities upon any applicable register (iii) any other expenses,
taxes, duties and charges payable by the Depositary, Agent or Custodian and (iv)
any fees of the Depositary as provided in Section 5.09 hereof and Exhibit B
hereto; (b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.01 hereof; (c) compliance with the provisions of the Company's Memorandum and
Articles of Association in effect from time to time and resolutions and
regulations of the Company's Board of Directors adopted pursuant to such
Memorandum and Articles of Association and (d) compliance with (i) any laws or
governmental regulations relating to Receipts or American Depositary Shares or
to the withdrawal of Deposited Securities and (ii) such reasonable regulations,
if any, as the Depositary and Company may establish consistent with the
provisions of this Deposit Agreement.
After consultation with the Company, the delivery of Receipts against
deposits of Shares generally or against deposits of particular Shares may be
suspended, or the transfer of Receipts in particular instances may be refused,
or the registration of transfer of outstanding Receipts, or the combination or
split-up of Receipts, generally may be suspended, during any period when the
transfer books of the Depositary or any register for Shares or other Deposited
Securities are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason.
Notwithstanding any other provision of this Deposit Agreement or the Receipts,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
be suspended only for (i) temporary delays caused by closing the transfer books
of the Depositary or the
10
<PAGE>
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities or (iv) any other reason that may at any time be specified in
paragraph I(A)(1) of the General Instructions to Form F-6 under the Securities
Act, as such instructions may from time to time be in effect, or any successor
provision thereto. In furtherance and not in limitation of the foregoing, the
Depositary shall not, and it shall instruct the Custodian not to (i) accept for
deposit under Section 2.02 hereof, Shares in such circumstances where the
Depositary, the Custodian or the Company has reason to believe that such Shares
have been withdrawn from a restricted depositary receipt facility in respect to
Shares established or maintained by a depositary bank, including any such
facility established or maintained by the Depositary (a "restricted facility")
or permit such Shares to be used to satisfy any person's obligation with respect
to transactions contemplated by Section 2.10 hereof unless such Shares have been
acquired in a transaction (a) registered under the Securities Act, (b) in
compliance with Regulation S, or (c) in accordance with Rule 144A under the
Securities Act and the Depositary may, as a condition to accepting the deposit
of such Shares hereunder, require the person depositing such Shares to provide
the Depositary with a certificate in writing to the foregoing effect; or (ii)
accept for (w) deposit under Section 2.02 hereof, (x) transfer or exchange under
Section 2.04 hereof, (y) cancellation under Section 2.05 hereof or (z) delivery
in satisfaction of any person's obligation with respect to transactions
contemplated by Section 2.10 hereof, depositary receipts representing Shares
issued pursuant to a restricted facility. Without limitation of the foregoing,
the Depositary shall not knowingly accept for deposit under this Deposit
Agreement any Shares or other Deposited Securities which are required to be
registered under the Securities Act unless a registration statement under the
Securities Act is in effect as to such Shares or other Deposited Securities or
any Shares or Deposited Securities the deposit of which would violate the
Company's Memorandum and Articles of Association.
Section 2.08. Lost Receipts, etc. Subject to the payment of the
------------------
relevant fees, taxes, duties, charges, costs and expenses, in case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and
deliver a new Receipt of like form and tenor in exchange and substitution for
such mutilated Receipt upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt, upon the Registered
Holder thereof (a) filing with the Depositary (i) a request for such execution
and delivery before the Depositary has notice that any such Receipt has been
acquired by a bona fide purchaser, (ii) evidence satisfactory to the Depositary
of such destruction or loss or theft of such Receipt and the authenticity
thereof and of the Registered Holder's ownership thereof, (b) furnishing the
Depositary with a sufficient indemnity bond in favour of, and reasonably
satisfactory to, the Company and the Depositary and (c) satisfying any other
reasonable requirements imposed by the Depositary.
Section 2.09 Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled, except as
otherwise required by law. Cancelled Receipts shall not be entitled to any
benefits under this Agreement or be valid or obligatory for any purpose.
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<PAGE>
Section 2.10 Pre-Release of Shares and Receipts. The Depositary may issue
----------------------------------
Receipts against evidence of rights to receive Shares from the Company (or any
agent of the Company recording Share ownership). No such issue of Receipts will
be deemed a "Pre-Release" subject to the restrictions of the following
paragraph. Subject to the further terms and provisions of this Section 2.10,
the Depositary and its agents, on their own behalf, may own and deal in any
class of securities of the Company and its Affiliates and in Receipts.
In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; provided, however, that the Depositary may execute and deliver
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Receipts prior to the receipt of Shares pursuant to Section 2.02 hereof (each
such transaction is hereinafter referred to as a "Pre-Release"). The Depositary
may, subject to the provisions of Section 2.06 hereof, deliver Shares upon the
receipt and cancellation of Receipts which have been pre-released, but which
shares may not yet have been received. The Depositary may receive Receipts in
lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the person to whom
Receipts or Shares are to be delivered that such person, or its customer,
beneficially owns the Shares or Receipts to be remitted, as the case may be, and
that such person or its customer agrees to indicate the Depositary as owner of
such Shares or Receipts in its records and to hold such Shares or Receipts in
trust for the Depositary until such Shares or Receipts are delivered to the
Depositary or the Custodian, and unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or Receipts (b) at all
times fully collateralized with cash, United States Governmental Securities or
such other collateral as the Depositary deems, in good faith, to be of
comparable safety and liquidity, (c) terminable by the Depositary on five (5)
business days' notice and (d) subject to such further indemnities and credit
regulation as the Depositary deems reasonably appropriate upon notice to the
Company. The number of Shares not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
- -------- -------
such limit from time to time as it deems appropriate, and may change such limit
for purposes of general application. The Depositary will also set Dollar limits
with respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfil its obligations
to the Registered Holders under this Deposit Agreement, the collateral referred
to in clause (b) above shall be held by the Depositary as security for the
performance of the Pre-Releasee's obligations to the Depositary in connection
with a Pre-Release transaction, including the Pre-Releasee's obligation to
deliver Shares or Receipts upon termination of a Pre-Release transaction (and
shall not, for the avoidance of doubt, constitute Deposited Securities
hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
12
<PAGE>
ARTICLE III
CERTAIN OBLIGATIONS OF REGISTERED HOLDERS OF RECEIPTS
Section 3.01 Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
person presenting Shares for deposit or any Registered Holder or Beneficial
Owner may be required by the Depositary or the Company from time to time (i) to
file with the Depositary, the Company, or the Custodian such proof of
citizenship or residence, taxpayer status, exchange control approval, payment of
applicable taxes or other governmental charges, legal or beneficial ownership of
Receipts, Deposited Securities or other securities, compliance with all
applicable laws or regulations or terms of this Deposit Agreement or the
Receipts, or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, or any other information the
Depositary or the Company may deem necessary or appropriate to evidence
compliance with all applicable laws and regulations, and (ii) to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper or as the Company may reasonably request by written
request to the Depositary. The Depositary and the Registrar, as applicable,
may, and at the reasonable request of the Company, shall, withhold the delivery
or registration of transfer of any Receipt or the distribution of any dividend
or distribution of rights or of the sale proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties are made to the
Company's and the Depositary's satisfaction. The Depositary shall from time to
time advise the Company of the availability of any such proofs, certificates or
other information and shall provide the Company, in a timely manner, with copies
thereof upon written request by the Company, unless such disclosure is
prohibited by law.
Section 3.02 Liability of Registered Holders for Taxes and Other
---------------------------------------------------
Charges. If any tax, governmental or other charge shall become payable with
- -------
respect to any Receipt or with respect to any Deposited Securities represented
by American Depositary Shares evidenced by any Receipt, such tax, governmental
or other charge shall be payable by the Registered Holder of such Receipt to the
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any transfer of such Receipt or any combination or split-
up thereof or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced thereby until such payment is made, and may withhold
or deduct from any dividends or other distributions or may sell any part or all
of the Deposited Securities represented by American Depositary Shares evidenced
by such Receipt and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax, governmental or other charge
(and any taxes or expenses arising out of such sale), the Registered Holder of
such Receipt remaining liable for any deficiency.
Section 3.03. Representations and Warranties on Deposit of Shares.
---------------------------------------------------
Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non-assessable and free of any preemptive
rights, if any, of the holders of outstanding Shares and that the person making
such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that (i) such Shares presented for deposit are not and the
Receipts
13
<PAGE>
evidencing the American Depositary Shares representing such Shares would not be
Restricted Securities and (ii) the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not otherwise restricted under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts in respect thereof.
Section 3.04 Disclosure of Interests. Each Registered Holder agrees
-----------------------
to comply with the provisions of the Memorandum and Articles of Association of
the Company and the laws of India with regard to notification to the Company of
interests in Shares, which include provisions requiring a Registered Holder to
disclose certain acquisitions or dispositions of Shares (or Share equivalents)
within a prescribed period of time.
Notwithstanding any other provision of this Deposit Agreement, each
Registered Holder agrees to comply with requests from the Company pursuant to
Indian law, the rules and requirements of any relevant stock exchange on which
the Shares are, or will be, registered, traded or listed or the Memorandum and
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Registered Holder owns Receipts
(and Shares as the case may be) and regarding the identity of any other person
interested in such Receipts and the nature of such interests and various other
matters, whether or not they are Registered Holders at the time of such request.
Section 3.05. Ownership Restrictions. The Company may restrict
----------------------
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Memorandum and Articles of
Association of the Company. The Company may also restrict, in such manner as it
deems appropriate, transfers of the American Depositary Shares where such
transfer may result in the total number of Shares represented by the American
Depositary Shares owned by a single Registered Holder to exceed any such limits.
The Company may instruct the Depositary to take action with respect to the
ownership interest of any Holder in excess of the limitation set forth in the
preceding sentence, including but not limited to a mandatory sale or disposition
on behalf of a Registered Holder of the Shares represented by the American
Depositary Shares held by such Registered Holder in excess of such limitations,
if and to the extent such disposition is permitted by applicable law and the
Memorandum and Articles of Association of the Company. The Depositary shall
endeavor to effect any such mandatory sale or disposition as is contemplated in
this Section, but shall have no liability (in the absence of its own willful
default, negligence or bad faith or that of its agents, officers, directors or
employees) with respect the terms of such mandatory sale or disposition or if
such mandatory sale or disposition shall not be possible.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.01. Cash Distributions. Whenever the Depositary or the
------------------
Custodian shall receive any cash dividend or other cash distribution on any
Deposited Securities (including any liquidation surplus or other amounts
received in the liquidation of the Company), the Depositary
14
<PAGE>
shall, subject to the provisions of Section 4.05 hereof, if practicable in the
opinion of the Depositary, give notice to the Registered Holders of its receipt
of such payment, specifying the amount per Share payable in respect of such
dividend or distribution and the estimated date, as determined by the
Depositary, for such payment, and shall as soon as practicable convert or cause
to be converted such dividend or distribution into Dollars and promptly
distribute the Dollars thereby received (net of the fees, expenses and charges
of the Depositary as provided in Section 5.09 hereof and Exhibit B hereto) to
Registered Holders of Receipts entitled thereto on the record date fixed
pursuant to Section 4.06 hereof in proportion to the number of American
Depositary Shares held by each of them, respectively; provided, however, that in
-------- -------
the event that any of the deposited Shares is not entitled, by reason of its
date of issuance, or otherwise, to receive the full amount of such cash dividend
or distribution, the Depositary shall make appropriate adjustments in the
amounts distributed to the Registered Holders of the Receipts issued in respect
of such Shares; and provided, further, that in the event that the Company or the
-------- -------
Depositary shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, the amount distributed on the Receipts issued in
respect of such Deposited Securities shall be reduced accordingly.
The Depositary shall distribute only such amounts, however, as can be
distributed without attributing to any Registered Holder of a Receipt a fraction
of one cent and any balance not so distributable shall be retained by the
Depositary beneficially as an additional fee under Section 5.09. Before making
any distribution or other payment in respect of any Deposited Securities, the
Company will make such deductions, if any, which, by any applicable laws or
regulations, the Company is required to make in respect of any income, capital
gains or other taxes (including interest and penalties) and the Company may also
deduct the amount of any tax or governmental charges payable by the Company or
for which the Company might be made liable in respect of such distribution or
gains or other payments or any document signed in connection therewith or any
capital gains or other taxes payable by the Registered Holders. The Company or
its agent will remit to the appropriate governmental agency in India all amounts
withheld and owing to such agency. The Depositary will forward to the Company
or its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
to the extent practicable any such reports necessary to obtain benefits under
the applicable tax treaties for the Registered Holders of Receipts.
Section 4.02. Distribution Other Than Cash, Shares or Rights.
----------------------------------------------
Whenever the Depositary or the Custodian shall receive any distribution other
than cash, Shares or rights pursuant to Section 4.01, 4.03 or 4.04 hereof upon
the Deposited Securities, the Depositary shall after obtaining, at the Company's
expense, opinion(s) of United States and Indian counsel, as applicable,
reasonably satisfactory to the Depositary that the proposed distribution does
not violate any applicable laws or regulations, cause such amount of the
securities or property received by it to be distributed to the Registered
Holders of Receipts on the record date fixed pursuant to Section 4.06 hereof, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by each of them, respectively, in any manner that the
Depositary may reasonably deem equitable and practicable for accomplishing such
distribution
15
<PAGE>
net of expenses of the Depositary with the consent of the Company (which consent
shall not be unreasonably withheld); provided, however, that if in the
-------- -------
reasonable opinion of the Depositary such distribution cannot be made among the
Registered Holders of Receipts entitled thereto in proportion to the number of
American Depositary Shares held by them, or if for any other reason (including,
but not limited to, any requirement that the Company or the Depositary withhold
an amount on account of taxes or other governmental or that such securities must
be registered under the Securities Act or other law in order to be distributed
to Registered Holders) the Depositary deems such distribution not to be lawful
or feasible, the Depositary with the consent of the Company (which consent shall
not be unreasonably withheld) may adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the sale, at public or private sale, of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it deems proper, and the net proceeds of any such sale (net of the fees,
expenses and charges of the Depositary as provided in Section 5.09 hereof and
Exhibit B hereto) shall be distributed by the Depositary to the Registered
Holders of Receipts entitled thereto as in the case of a distribution received
in cash. If any distribution made by the Company with respect to the Deposited
Securities and received by the Depositary shall remain unclaimed at the end of
12 years from the first date upon which such distribution is made available to
Registered Holders and subject to any applicable laws, all rights of the
Registered Holders to such distribution or the proceeds of the sale thereof
shall be extinguished and the Depositary shall return the same to the Company
for its own use and benefit (except for any distribution upon the liquidation of
the Company when the Depositary shall retain the same) and the Depositary shall
have no obligation therefor or liability with respect thereto.
Section 4.03. Distribution in Shares. If any distribution upon
----------------------
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may, and shall if the Company so requests, distribute to the
Registered Holders of Receipts on the record date fixed pursuant to Section 4.06
hereof, in proportion to the number of American Depositary Shares held by each
of them, respectively, additional Receipts in the same form for an aggregate
number of American Depositary Shares representing the amount of Shares received
as such dividend or free distribution, subject to the terms and conditions of
this Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.12 hereof and the
payment of the fees, expenses and charges of the Depositary as provided in
Section 5.09 hereof and Exhibit B hereto. In lieu of delivering Receipts for
fractional American Depositary Shares the Depositary may, in its discretion,
sell the amount of Shares represented by the aggregate of such fractions, at
public or private sale, at such place or places and upon such terms as it may
deem proper, and distribute the net proceeds of any such sale in accordance with
Section 4.01 hereof. If additional Receipts are not so distributed (except as
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities.
Section 4.04. Rights. In the event that the Company shall offer or
------
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary shall as soon as practicable give notice to the Registered
16
<PAGE>
Holders of such offer (unless notified by the Company that such offer or
invitation should not be made), specifying, if applicable, the earliest date
established for acceptance thereof, the last date established for acceptance
thereof and the manner by which and time during which Registered Holders may
request the Depositary to exercise such rights as provided below or, if such be
the case, give details of how the Depositary proposes to distribute the rights
or make the net proceeds available to such Registered Holders in accordance with
the procedures for distributing cash provided for in Section 4.01 hereof, or, if
by the terms of such rights offering or for any other reason it would not be
lawful or feasible for the Depositary either to make such rights available to
any Registered Holders or to dispose of such rights and make the net proceeds
available to such Registered Holders, then the Depositary shall allow the rights
to lapse.
In circumstances in which rights would otherwise not be distributed
generally, if the Company and the Depositary determine that it is lawful and
feasible to make such rights available, by means of warrants or otherwise, to
certain Registered Holders, the Depositary will, subject to applicable law, make
such rights available to such Registered Holders in proportion to the number of
American Depositary Shares held by such Registered Holder, upon written notice
from the Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Registered Holder
has executed such documents as the Company and the Depositary have determined
are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Registered Holders, then upon instruction from any such
Registered Holder pursuant to such warrants or other instruments to the
Depositary from such Registered Holder to exercise such rights, upon payment by
such Registered Holder to the Depositary for the account of such Registered
Holder of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Registered Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Registered Holder.
As agent for such Registered Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement,
and shall, pursuant to Section 2.03 of this Deposit Agreement, execute and
deliver Receipts to such Registered Holder. In the case of a distribution
pursuant to the second paragraph of this Section 4.04, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation and transfer under such
laws.
If the Depositary determines in its reasonable discretion that it is
not lawful or feasible to make such rights available to all or certain
Registered Holders, it may sell the rights, warrants or other instruments
(either by public or private sale and otherwise at its discretion subject to
Indian laws and regulations) in proportion to the number of American Depositary
Shares held by the Registered Holders to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees, expenses and charges of the Depositary as
provided in Section 5.09 hereof and Exhibit B hereto and all taxes and other
governmental charges payable in connection with such rights, and subject to the
terms and
17
<PAGE>
conditions of this Deposit Agreement) for the account of such Registered Holders
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Registered Holders on account of exchange restrictions or the date of delivery
of any Receipt or otherwise. The Depositary shall endeavor to effect any such
sale as is contemplated in this Section, but shall have no liability (in the
absence of its own willful default, negligence or bad faith or that of its
agents, officers, directors or employees) with respect the terms of such sale or
if such sale shall not be possible.
The Depositary will not offer rights to Registered Holders, unless it
has received from the Company evidence, as provided in Section 5.07 hereof, to
the effect that (i) a registration statement under the Securities Act covering
such offering is in effect or (ii) such offering does not require registration
under the Securities Act. If a Registered Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no registration under the Securities Act, the Depositary shall not effect
such distribution unless it has received an opinion from recognized counsel in
the United States for the Company satisfactory to the Depositary upon which the
Depositary may rely that such distribution to such Registered Holder is exempt
from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Registered
Holders in general or any Registered Holder in particular, any foreign exchange
exposure or loss incurred in connection with such sale, or any liability to the
purchaser of such rights or other instruments. Nothing in the Deposit Agreement
shall create, or shall be construed to create, any obligation on the part of the
Company to file such a registration statement or to register such rights or the
securities represented thereby under the Securities Act or any other applicable
law.
Notwithstanding any provision of this Deposit Agreement or the
Receipts to the contrary, the Company shall not issue any rights or bonus shares
in respect of the Deposited Securities nor shall the proceeds of a sale of such
rights or bonus shares be repatriated by the Company unless there is approval by
the Reserve Bank of India to do so.
Section 4.05. Conversion of Foreign Currency. Whenever the
------------------------------
Depositary or the Custodian shall receive foreign currency, received by way of
dividends or other distributions or in the form of net proceeds from the sale of
securities, property or rights, and if, at the time, the foreign currency so
received can, in the judgment of the Depositary, be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall as soon as practicable convert or cause to be converted, by
sale or in any other manner that it may determine, such foreign currency into
Dollars, and such Dollars (less any reasonable and customary expenses incurred
by the Depositary in the conversion of such foreign currency and any expenses
incurred on behalf of the Registered Holder in complying with currency exchange
control or other governmental requirements) shall be promptly distributed to the
Registered Holders entitled thereto or, if the Depositary shall have distributed
any warrants or other instruments which entitle the holders thereof to such
Dollars, then to the holders of such warrants or instruments upon surrender
thereof for cancellation, in either case, without liability for interest
thereon. Such distribution may be made upon an averaged or other practicable
basis
18
<PAGE>
without regard to any distinctions among Registered Holders on account of
exchange restrictions, the date of delivery of any Receipt or otherwise.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary, with
the assistance of, and at the reasonable expense of, the Company, shall make
reasonable efforts to apply, or procure that an application be made, for such
approval or licence, if any, as it may deem desirable. In no event, however,
shall the Depositary be obligated to make such a filing, nor shall it be liable
for failure to obtain such permit or licence.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtainable at a reasonable cost or within
a reasonable period as determined by the Depositary, the Depositary may in its
discretion, after notice to the Company, and subject to applicable laws and
regulations, either (i) distribute such foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to the
Registered Holders of Receipts entitled to receive the same, or (ii) hold such
foreign currency, without liability for interest thereon, for the respective
accounts of such persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can
be effected as aforesaid for distribution to some but not all of the Registered
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Registered Holders of Receipts entitled
thereto and, with respect to the balance of such foreign currency, shall in its
discretion, after consultation with the Company, and subject to any applicable
law and regulations, either (i) distribute or make available for distribution
such balance to the persons who were Registered Holders of Receipts entitled
thereto with respect to whom such conversion could not then be effected, or (ii)
hold such balance for the respective accounts of such persons, uninvested and
without liability for interest.
Section 4.06. Fixing of Record Date. Whenever any cash dividend or
---------------------
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, the Depositary shall fix a record date (a) for
the determination of the Registered Holders who shall be (i) entitled to receive
such dividend, distribution or rights or the net proceeds of the sale thereof or
(ii) entitled to give instructions for the exercise of voting rights at any such
meeting, or (b) on or after which each American Depositary Share will represent
the changed number of Shares. Such record date shall, to the extent
practicable, be the same record date as any corresponding record date set by the
Company for such purpose. Subject to the provisions of Sections 4.01 through
4.05 and to the other terms
19
<PAGE>
and conditions of this Deposit Agreement, the Registered Holders on such record
date shall be entitled, as the case may be, to receive the amount distributable
by the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them, respectively, and to give voting
instructions and to act in respect of any other such matter.
Section 4.07. Voting of Deposited Securities. As soon as practicable
------------------------------
after receipt of notice of any meeting of holders of Shares or other Deposited
Securities the Depositary shall at the Company's expense, mail to the Registered
Holders of Receipts a notice which shall contain (a) such information as is
contained in such notice of meeting, (b) a statement that such Registered
Holders of Receipts at the close of business on a specified record date will be
entitled, subject to any applicable provision of Indian law, of the Deposited
Securities or of the Memorandum and Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares, and (c) a brief statement as to the
manner in which such instructions may be given, including an express indication
that the Depositary shall notify such instruction to the Chairman of the
Company, or such other director that the Chairman may designate, and appoint the
Chairman or that other person designated by the Chairman as representative of
the Depositary and the Registered Holders to attend such meeting and vote the
Deposited Securities in the direction so instructed by such Registered Holder
and (d) a statement that if the Depositary does not receive instructions from a
Registered Holder, such Registered Holder may under certain circumstances be
deemed to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities. Upon the
written request of a Registered Holder on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as is practicable and permitted under the applicable
provisions of law and of the Memorandum and Articles of Association governing
Deposited Securities of the Company to vote or cause to be voted the amount of
Deposited Securities represented by such American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request.
For the purposes of this Section 4.07, in the event that the
Depositary receives express instructions from Registered Holders to demand a
poll with respect to any matter to be voted on by Holders, the Depositary may
notify the Chairman or a person designated by the Chairman of such instructions
and request the Chairman or such designee to demand a poll with respect to such
matters and the Company agrees that the Chairman or such designee will make
their reasonable best efforts to demand a poll at the meeting at which such
matters are to be voted on and to vote such Shares in accordance with such
Registered Holder's instructions; provided, however, that prior to any demand of
-------- --------
a poll or request to demand poll by the Depositary upon the terms set forth
herein, the Company shall, at its expense, deliver to the Depositary an opinion
of Indian counsel, reasonably satisfactory to the Depositary, stating that such
action is in conformity with all applicable laws and regulations and that the
demand for a poll by the Depositary or a person designated by the Depositary
will not expose the Depositary to any liability to any person. The Depositary
shall not have any obligation to demand a poll or request
20
<PAGE>
the demand of a poll if the Company shall not have delivered to the Depositary
the local counsel opinion set forth in this paragraph.
Under Indian law voting of Shares is by show of hands unless a poll is
demanded by a member or members present in person or by proxy holding at least
one-tenth of the total Shares entitled to vote on the resolution or by those
holding paid up capital of at least Rs. 50,000. A proxy may not vote except in
a poll.
The Depositary agrees not to, and shall ensure that the Custodian and
each of their nominees does not, vote, attempt to exercise the right to vote, or
in any way make use of, for purposes of establishing a quorum or otherwise, the
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by a Receipt other than in accordance with such instructions
from the Registered Holder, or as provided below. The Depositary may not itself
exercise any voting discretion over any Shares. If the Depositary does not
receive instructions from any Registered Holder with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Registered Holder's Receipts on or before the date established by the
Depositary for such purpose, such Registered Holder shall be deemed, and the
Depositary shall deem such Registered Holder, to have instructed the Depositary
to give discretionary proxy to a person designated by the Company to vote such
Deposited Securities; provided that (x) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information as promptly as practicable
in writing) that (i) the Company does not wish such proxy given, (ii)
substantial opposition exists or (iii) the rights of the holders of Shares will
be adversely affected and (y) the Depositary shall not have any obligation to
give such discretionary proxy to a person designated by the Company if the
Company shall not have delivered to the Depositary the local counsel opinion and
representation letter set forth in the next paragraph.
Prior to each request for a discretionary proxy upon the terms set
forth herein, the Company shall, at its own expense, deliver to the Depositary
(aa) an opinion of Indian counsel, reasonably satisfactory to the Depositary,
stating that such action is in conformity with all applicable laws and
regulations (bb) a representation and indemnity letter from the Company
(executed by a senior officer of the Company) which (i) designates the person to
whom any discretionary proxy should be given, (ii) confirms that the Company
wishes such discretionary proxy to be given and (iii) certifies that the Company
has not and shall not request the discretionary proxy to be given as to any
matter as to which substantial opposition exists or which may adversely affect
the rights of holders of Shares.
Shares which have been withdrawn from the depositary facility and
transferred on the Company's Register of Members to a person other than the
Depositary or its nominee may be voted by such persons. However, Registered
Holders who wish to withdraw Shares to vote at a shareholders meeting may not
receive sufficient advance notice of shareholders meetings to enable them to
make such withdrawal of the Shares in time to vote at the meeting. In addition,
once withdrawn from the depositary facility, Shares may not be redeposited.
21
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The directors of the Company may decline to register the transfer of
Shares on certain grounds.
Section 4.08 Changes Affecting Deposited Securities. Upon any change
--------------------------------------
in nominal value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement, and applicable law,
evidence American Depositary Shares representing the right to receive such
additional Deposited Securities. Alternatively, the Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of this Deposit Agreement and receipt of an opinion of counsel to the
Company obtained at the expense of the Company satisfactory to the Depositary
that such distributions are not in violation of any applicable laws or
regulations, execute and deliver additional Receipts as in the case of a stock
dividend on the Deposited Securities, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts, in either case, as well as in the
event of newly deposited Shares, with necessary modifications to the form of
Receipt contained in Exhibit A hereto, specifically describing such new
Deposited Securities or corporate change. If the Company approves or requests
the execution and delivery of additional Receipts, the Company shall, jointly
with the Depositary, amend the Registration Statement of Form F-6 as filed with
the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Registered Holders, the Depositary
may with the Company's approval and shall if the Company requests, subject to
receipt of an opinion of Company's counsel reasonably satisfactory to the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales for the account of the Registered Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Registered Holders and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.01. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Registered Holders in general or any
Registered Holder or Registered Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
Section 4.09. Statutory Reports. The Depositary shall make available
-----------------
for inspection by Registered Holders at the Depositary's Corporate Trust Office
any notices, reports and other communications received from the Company which
are both (a) received by the Depositary, the Custodian or their respective
nominees as the holder of Deposited Securities and (b) made generally available
to the holders of Deposited Securities by the Company. Any such reports and
communications, including any proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any rules or
regulations of the Commission.
22
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Section 4.10 Information Made Available to the Commission. The
--------------------------------- ----------
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under the Securities Exchange Act and will
continue to furnish the Commission such reports and documents for as long as any
Receipts remain outstanding or until sixty (60) days shall have expired after
the Company shall have delivered to the Depositary a written notice of its
election to terminate this Deposit Agreement pursuant to Section 6.02 hereof.
Such reports and documents, and all notices, reports and communications referred
to in Sections 4.09 and 5.06 hereof, shall be in English. The Company is subject
to periodic reporting or other information delivery requirements under the
Securities Exchange Act and will in accordance therewith file reports and other
information with the Commission. Such information may be inspected and copied
by Registered Holders at the public reference facilities maintained by the
Commission located at the date hereof at Judiciary Plaza, 450 Fifth Street N.W.
(Room 1024), Washington, D.C. 20549.
Section 4.11 List of Registered Holders. Promptly upon the written
--------------------------
request of the Company, the Depositary shall furnish on a semi-annual basis to
the Company a list, as of a recent date, of the names, addresses and holdings of
American Depositary Shares by all persons in whose names Receipts are registered
on the books of the Depositary.
Section 4.12. Withholding. In connection with any distribution to
-----------
Registered Holders, the Company will remit to the appropriate governmental
authority or agency any amounts required to be withheld by the Company and owing
to such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency any amounts
required to be withheld and owing to such authority or agency by the Depositary
or the Custodian. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may, by public or private sale, dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Registered Holders entitled thereto in proportion to the number
of American Depositary Shares held by them, respectively. The Registered Holder
shall indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained for
such Registered Holder pursuant to this Section 4.12.
Section 4.13 Reports. The Depositary shall make available for
-------
inspection by Registered Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also send to Registered Holders copies of such reports when
furnished by the Company to the Custodian pursuant to Section 5.06 hereof.
23
<PAGE>
Section 4.14 Power of Attorney. Each Registered Holder and
-----------------
Beneficial Owner, upon acceptance of American Depositary Share(s) represented by
a Receipt issued in accordance with the terms hereof, hereby appoints the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all steps or action provided for or contemplated
herein with respect to the Deposited Securities, to adopt any and all procedures
necessary to comply with applicable law, including, but not limited to, those
set forth in this Article IV, and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of this Deposit Agreement.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.01. Maintenance of Offices and Transfer Books by the
----------------------------------- ------------
Depositary. Until termination of this Deposit Agreement in accordance with its
- ----------
terms, the Registrar shall maintain, in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration of transfer,
combination and split-up of Receipts and surrender of Receipts, and the delivery
and withdrawal of Deposited Securities in accordance with the provisions of this
Deposit Agreement.
The Registrar shall keep a book or books for the transfer and
registration of Receipts which at all reasonable times shall be open for
inspection by Registered Holders of Receipts; provided that such inspection
shall not be for the purpose of communicating with Registered Holders in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the Receipts. The Registrar may
close the books, at any time or from time to time, when reasonably deemed
expedient by it in connection with the performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registry of such Receipts in accordance with any
requirements of such exchange or exchanges.
Section 5.02. Prevention or Delay in Performance by the Depositary,
-----------------------------------------------------
the Custodian or the Company. Neither the Depositary, the Custodian nor the
- ----------------------------
Company shall incur any liability to any Registered Holder or Beneficial Owner
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States of America, any state thereof, India or of any
other country, or of any other action of any governmental or regulatory
authority of the United States, India or any other country, or of any stock
exchange, or by reason of any provision, present or future, of the Memorandum
and Articles of Association of the Company, or by reason of any act of God or
war or other circumstance beyond its control, the Depositary, the Custodian or
the Company, as the case may be, shall be delayed in, prevented or forbidden
from, or subjected to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of this Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary, the Custodian or
the Company, nor any of their respective directors, officers,
24
<PAGE>
employees or agents, incur any liability to any Registered Holder or Beneficial
Owner of a Receipt by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which, by the terms of this
Deposit Agreement, it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02, or 4.03 of this Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of this Deposit Agreement, or for any
other reason, such distribution or offering may not be made available to
Registered Holders, and the Depositary may not dispose of such distribution or
offering on behalf of such Registered Holders and make the net proceeds
available to such Registered Holders, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Section 5.03. Obligations of the Depositary, the Custodian and the
----------------------------------------------------
Company. Neither the Depositary, the Custodian nor the Company nor any of their
- -------
respective directors, officers, employees or agents, assumes any obligation or
shall be subject to any liability (including, without limitation, as to the
Depositary and Custodian, liability with respect to the validity or worth of the
Deposited Securities) under this Deposit Agreement to Registered Holders or
Beneficial Owners of Receipts, other than that each of them agrees to perform
its obligations and duties specifically set forth in this Deposit Agreement
without negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses and liabilities be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary, the Custodian nor the Company shall be liable
for any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Registered Holder or Beneficial Owner of a Receipt or any other person believed
by it in good faith to be competent to give such advice or information. The
Depositary, the Custodian and the Company may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor its agents shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner or effect of any such vote made either with or without
request, or for not exercising any right to vote, as long as any such action or
non-action is in good faith and in accordance with the terms of this Deposit
Agreement.
25
<PAGE>
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
Section 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. Subject to the provisions of the next paragraph, the
- -----------------------
Company may terminate the appointment of the Depositary under the Deposit
Agreement by giving at least 60 days' notice in writing to the Depositary and
the Custodian, and the Depositary may resign as Depositary by giving at least 60
days' notice in writing to the Company and the Custodian. Within 30 days after
the giving of such notice, notice thereof shall be duly given by the Depositary
to the Registered Holders. In the event a successor depositary has not been
appointed and accepted its appointment within 60 days, the Depositary may
terminate the Deposit Agreement as provided in Section 6.02 hereof.
Notwithstanding any other provision hereof, the Company may not
appoint a successor depositary hereunder or establish another deposit facility
with another depositary bank for a period of ten years from the date of hereof
unless (a) a dispute with respect to the services provided by the Depositary
hereunder remains unresolved after a period of three months from the date such
problem was first brought to the attention of the Depositary by the Company or
(b) the relevant pro rata amount of any contribution made to the Company by the
Depositary is repaid to the Depositary.
The termination of the appointment or the resignation of the
Depositary shall take effect on the date specified in such notice; provided that
no such termination of appointment or resignation shall take effect until the
appointment by the Company of a successor Depositary as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company, unless the Company shall desire the termination of this
Deposit Agreement as provided in Section 6.02 hereof, shall use its best efforts
to appoint a successor depositary, which shall be a bank or trust company having
its principal office in the Borough of Manhattan, The City of New York with
effect from the date of termination or resignation specified in such notice as
soon as reasonably possible following notice of such termination or resignation.
Every successor depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; provided, however, that such predecessor, upon payment of all sums
-------- -------
due it and on the written request of the Company, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor and shall deliver to
such successor a list of the Registered Holders of all outstanding Receipts and
such other information relating to Receipts and Registered Holders thereof as
the successor may reasonably request. The Depositary shall promptly mail notice
of the appointment of the successor depositary to the Registered Holders of
Receipts and the Custodian.
26
<PAGE>
Any corporation into or with which the Depositary may be converted,
merged or consolidated shall be the successor of such Depositary without the
execution or filing of any document or any further act.
Section 5.05. The Custodian. The Depositary may appoint one or more
-------------
agents to act as its Custodian hereunder. The Depositary has initially
appointed The Industrial Credit and Investment Corporation of India Limited as
Custodian and agent of the Depositary for the purpose of this Deposit Agreement.
Any Custodian in acting hereunder shall be subject at all times and in all
respects to the directions of the Depositary, and shall be responsible solely to
it. Any Custodian may resign and be discharged from its duties hereunder by
notice of such resignation delivered to the Depositary at least thirty (30) days
prior to the date on which such resignation is to become effective. If upon the
effectiveness of such resignation there shall be no Custodian acting hereunder,
the Depositary shall, promptly after receiving such notice, appoint, subject to
the written approval of the Company which shall not unreasonably withheld, a
substitute custodian that is organized under the laws of India and which shall
thereafter be a Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Registered Holders to do so,
it may appoint substitute or additional custodian or custodians, which shall
thereafter be one of the Custodians hereunder subject in each instance to the
written approval of the Company. Upon demand of the Depositary any previous
Custodian shall deliver the Deposited Securities held by it to any other
Custodian or such substitute or additional custodian or custodians as the
Depositary shall instruct. Each such substitute or additional custodian or
custodians shall deliver to the Depositary, forthwith upon its appointment an
acceptance of such appointment satisfactory in form and substance to the
Depositary.
Upon the appointment of any successor depositary hereunder, any
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary, and the
appointment of such successor depositary shall in no way impair the authority of
any Custodian hereunder; provided, however, that the successor depositary so
-------- -------
appointed shall, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
Section 5.06. Notices and Reports. On or before the first date on
-------------------
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, the Company agrees to transmit to
the Depositary and the Custodian a copy of the notice thereof in English
language but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Memorandum and Articles of Association of the Company that may
be relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any rules or regulations
of the Commission, and the prompt
27
<PAGE>
transmittal by the Company to the Depositary and the Custodian, of such notices
and any other reports and communications, including any proxy soliciting
materials, which are made generally available by the Company to holders of its
Shares or other Deposited Securities. If requested in writing by the Company,
the Depositary will arrange for the mailing, at the Company's expense, of copies
of such notices, reports and communications that are made generally available by
the Company to holders of its Shares or other Deposited Securities and/or, at
the written request of the Company and at the Company's expense, make such
notices, reports and other communications available to all Registered Holders on
a basis similar to that for holders of Shares or other Deposited Securities, or
on such other basis as the Company may advise the Depositary is required or as
the Depositary may be required by any applicable law or regulation. The Company
will timely provide the Depositary with the quantity of such notices, reports
and communications, including any proxy soliciting materials, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings. The Depositary and Custodian may rely upon such copies for all
purposes of this Agreement. The Depositary will, at the expense of the Company,
make such copies and such notices, reports and communications available for
inspection by Registered Holders at the Depositary's Corporate Trust Office, at
the office of the Custodian and at any other designated transfer offices.
Section 5.07. Distribution of Additional Shares, Rights, etc. The
----------------------------------------------
Company agrees that in the event of any future issuances or distributions
(collectively, a "Distribution") of (a) additional Shares or other securities
that are Deposited Securities ("Infosys Securities"), (b) rights, preferences or
privileges to subscribe for Infosys Securities, (c) securities convertible into
or exchangeable for Infosys Securities or (d) rights, preferences or privileges
to subscribe for securities convertible into or exchangeable for Infosys
Securities, such Distribution shall be effected by the Company in a manner so as
not to violate the Securities Act or any securities or "Blue Sky" law of any
relevant jurisdictions in the United States. The Company shall direct the
Depositary in writing to take, or to cause the Custodian to take, specified,
reasonable measures with respect to the acceptance for deposit of Infosys
Securities as shall be required to prevent any violation of the registration
requirements of the Securities Act or any securities or "Blue Sky" law of any
relevant jurisdictions in the United States.
The Company will promptly furnish to the Depositary evidence
reasonably satisfactory to the Depositary and its counsel that a registration
statement under the Securities Act is in effect with respect to such
Distribution or a written opinion from U.S. counsel for the Company, which
counsel shall be satisfactory to the Depositary, stating that registration under
the Securities Act is not required with respect to such Distribution in order to
prevent violation of the registration requirements of the Securities Act or any
securities or "Blue Sky" law of any relevant jurisdictions in the United States.
Without limiting the duty of the Company under the previous sentence, the
Depositary shall be entitled, but not required, to consult with counsel of its
own choice at the expense of the Company and to take such action with respect to
the facility created hereby as it may deem appropriate to prevent any violation
by the Depositary or any agent of the Depositary of any United States federal or
state securities laws.
The Company agrees with the Depositary that neither the Company nor
any Affiliate will at any time deposit any Infosys Securities hereunder, either
upon original issuance or upon a sale
28
<PAGE>
of Infosys Securities previously issued and reacquired by the Company or by any
such Affiliate, unless such Infosys Securities have been registered under the
Securities Act or an exemption from the registration requirements of the
Securities Act is available.
5.08. Indemnification. The Company agrees to indemnify the
---------------
Depositary, any Custodian, any other agent of the Company or the Depositary
hereunder and their respective directors, officers, employees, agents and
affiliates (each, an "Indemnified Person") against, and hold each of them
harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may be based on or arise out of
(a) acts performed or omitted in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by an Indemnified Person, except for any
liability or expense arising out of the negligence or bad faith of such
Indemnified Person, or (ii) by the Company or any of its directors, officers,
employees, agents and affiliates or (b) out of or in connection with any offer
or sale of Receipts, American Depositary Shares, Shares or other Deposited
Securities or any registration statement under the Securities Act in respect
thereof, except to the extent such loss, liability or expense arises out of
information (or omissions from such information) relating to such Indemnified
Person, furnished in writing to the Company by such Indemnified Person expressly
for use in a registration statement under the Securities Act.
The Depositary agrees to indemnify the Company, its directors,
officers, employees, agents and Affiliates against, and hold each of them
harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may be based on or arise out of
acts performed or omitted by such Indemnified Person, due to its negligence or
bad faith.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement or the succession or substitution of any
indemnified person hereunder.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.09. Charges and Expenses. The Depositary shall be entitled
--------------------
to receive the following remuneration and reimbursement in respect of its
services under this agreement (a) from the Registered Holder (i) taxes and other
governmental charges; (ii) such registration fees as may from time to time be in
effect for the registration of transfers, if any, of Shares generally on the
share register of the Company or Foreign Registrar and accordingly applicable to
transfer of Shares to the name of the Depositary, a Custodian or their nominees
or the person who makes
29
<PAGE>
a withdrawal of Shares, on the making of deposits or withdrawals pursuant to
Sections 2.02 or 2.06; (iii) such cable, telex, facsimile transmission and
delivery expenses as are expressly provided in this Deposit Agreement to be at
the expense of persons depositing Shares or the Registered Holders; (iv) such
customary expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.08 (including, without limitation,
expenses incurred on behalf of Registered Holders in connection with compliance
with foreign exchange control restrictions); (v) a fee not in excess of $5.00
per 100 Receipts (or portion thereof) for the issuance and surrender,
respectively of Receipts pursuant to this Deposit Agreement; (vi) a fee not in
excess of $0.02 per American Depositary Share (or portion thereof) held for any
cash distribution made pursuant to this Deposit Agreement; and (vii) a fee for
the distribution of the Deposited Securities pursuant to this Deposit Agreement,
such fee being an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities, but which securities were instead
distributed by the Depositary to Registered Holders, and (b) from the Company
(i) such sums and amounts as may have been agreed between the Company and the
Depositary; (ii) all reasonable costs in connection with the delivery of
information under sections 4.10 and 5.06; and (iii) in respect of any
exceptional fees, taxes, duties, charges, costs and expenses which the
Depositary finds it necessary or desirable or is required to undertake or to pay
in the performance of its obligations under this agreement, such additional
remuneration as shall be agreed between the Depositary and the Company.
Subject to the above paragraph all fees, taxes, duties, charges, costs
and expenses which are payable by the Company shall be paid by the Company to
the Depositary upon demand therefor.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement and, as to any Depositary, the resignation or removal of such
Depositary as described in Section 5.04 hereof for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or removal.
Section 5.10. Retention of Depositary Documents. The Depositary is
---------------------------------
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the time permitted by the laws or
regulations governing the Depositary, unless the Company requests in writing
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
Section 5.11. Exclusivity. The Company agrees not to appoint any
-----------
other depositary for issuance of American Depositary Receipts so long as Bankers
Trust Company is acting as Depositary hereunder.
Section 5.12 List of Restricted Securities Owners. From time to
------------------------------------
time, the Company shall provide to the Depositary a list setting forth, to the
actual knowledge of the Company, those persons or entities who beneficially own
Restricted Securities and the Company shall update that list on a regular basis.
The Company agrees to advise in writing each of the persons or entities so
listed that such Restricted Securities are ineligible for deposit hereunder.
The Depositary may
30
<PAGE>
rely on such a list or update but shall not be liable for any action or omission
made in reliance thereon.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or have, the
effect of increasing any fees or charges payable by the Registered Holders of
Receipts (other than the fees of the Depositary for the execution and delivery
or cancellation of Receipts and taxes or other governmental charges,
registration fees and cable, telex or facsimile transmission and delivery
expenses), or which shall otherwise prejudice any substantial existing right of
Registered Holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of thirty (30) days after notice of such amendment
shall have been given to the Registered Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Registered Holders, shall be deemed
not to prejudice any substantial rights of Registered Holders or Beneficial
Owners. Every Registered Holder of an outstanding Receipt at the time any such
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Registered Holder of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except an order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed rules.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Registered Holders or within any other period of time as required for
compliance.
Section 6.02. Termination. The Depositary shall at any time, at the
------------
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Registered Holders of all Receipts then outstanding at
least 90 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement by mailing notice of
such termination to the Company and the Registered Holders of all Receipts then
outstanding, if at any time 60 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in the Deposit
31
<PAGE>
Agreement. Within 30 days after the giving of such notice, notice of such
termination shall be duly given by the Depositary to the Registered Holders of
all Receipts then outstanding.
During the period beginning on the date of the giving of such notice
by the Depositary to the Registered Holders and ending on the date on which such
termination takes effect, each Registered Holder of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 5.09 and Exhibit B hereto, and (c) payment of any applicable taxes or
other governmental charges, be entitled to delivery, to him or upon his order,
of the amount of Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt.
If any Receipts shall remain outstanding after the date of
termination, the Depositary shall as soon as reasonably practicable sell the
Deposited Securities then held under this Deposit Agreement by public or private
sale as it may deem appropriate (but shall have no liability with respect to
such sale) and, as soon as reasonably practicable thereafter, deliver the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Registered Holders of Receipts which have not theretofore been
surrendered, such Registered Holders thereupon becoming general creditors of the
Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash without
interest (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Registered Holder of
such Receipt in accordance with the terms and conditions of this Deposit
Agreement, and any applicable taxes or other governmental charges). Upon the
termination of this Deposit Agreement, the Depositary and the Company shall be
discharged from all obligations under this Deposit Agreement except for their
respective obligations under Section 5.08 hereof and the Company's obligations
to the Depositary under Section 5.09 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts, each of which shall be deemed an original and all
such counterparts shall constitute one and the same instrument. Copies of the
Deposit Agreement shall be filed with the Depositary and the Custodian, and
shall be open to inspection at the Depositary's Corporate Trust Office and the
principal office of the Custodian by any Registered Holder of a Receipt during
business hours.
Section 7.02 Agreement for Exclusive Benefit of Parties. This
---------------------------------- -------
Deposit Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person.
Section 7.03. Severability. In the event that any one or more of the
------------
provisions contained in this Deposit Agreement or in the Receipts shall be or
become invalid, illegal or unenforceable
32
<PAGE>
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected, prejudiced
or disturbed thereby.
Section 7.04. Notices. Any and all notices to be given to the
-------
Company shall be deemed to have been duly given if personally delivered or sent
by mail, or by cable, telex or facsimile transmission confirmed by letter,
addressed to: Infosys Technologies Limited, Electronics City, Hosur Road,
Bangalore, Karnataka, India 561 229, Attention: Chief Financial Officer or any
other place to which the Company may have transferred it principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail,
first-class airmail postage prepaid or by cable, telex or facsimile transmission
confirmed by letter, addressed to: Bankers Trust Company, Four Albany Street,
New York, New York 10006, Attention: ADR Department or any other place to which
the Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to the Custodian shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
SWIFT message, cable, telex or facsimile transmission, confirmed by letter,
addressed to: ICICI Limited, 163 Backbay Reclamation Road No.3, Mumbai 400 020-
25, or to any other address which the Custodian may specify in writing to the
Company.
Any and all notices to be given to any Registered Holder of a Receipt
shall be deemed to have been duly given if personally delivered or sent by mail,
first-class airmail postage prepaid, or by cable, telex or facsimile
transmission confirmed by letter, addressed to such Registered Holder at the
address of such Registered Holder as it appears on the transfer books of the
Depositary, or, if such Registered Holder shall have filed with the Depositary a
written request that notices intended for such Registered Holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by SWIFT message, cable, telex or
facsimile transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of
cable or telex or facsimile transmission message) is deposited, first-class
airmail postage prepaid, in a post-office letter box. The Depositary or the
Company, however, may act upon any cable, telex or facsimile transmission
message received by it from the other or from any Registered Holder of a
Receipt, notwithstanding that such cable, telex or, facsimile transmission
message shall not subsequently be confirmed by letter as aforesaid.
Section 7.05 Registered Holders and Beneficial Owners of Receipts are
--------------------------------------------------------
Parties. The Registered Holders and Beneficial Owners from time to time shall
- -------
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
Section 7.06. Governing Law. This Deposit Agreement and the Receipts
-------------
shall be governed by and construed in accordance with the laws of the State of
New York. Except as set forth in the following sentence, the Company and the
Depositary agree that the federal courts in
33
<PAGE>
the State of New York shall have jurisdiction to hear and determine any suit,
action or proceeding and to settle any dispute between them that may arise out
of or in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. In
addition, the Company and the Depositary hereby agree that in the event that a
Registered Holder brings a suit, action or proceeding against (a) the Depositary
in its capacity as Depositary under this Deposit Agreement or (b) against both
the Company and the Depositary, in either case, in any state or federal court of
the United States, and the Depositary has any claim for indemnification or
otherwise, against the Company arising out of the subject matter of such suit,
action or proceeding, then the Depositary may pursue such claim against the
Company in the state or federal court in the United States in which such suit,
action or proceeding is pending and, for such purposes, the Company irrevocably
submits to the non-exclusive jurisdiction of such courts. No disclaimer of
liability under the Securities Act is intended by any provision of the Deposit
Agreement.
Section 7.07 Assignment. This Deposit Agreement may not be assigned
----------
by either the Company or the Depositary.
Section 7.08. Compliance with U.S. Securities Laws. Notwithstanding
------------------------------------
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agree that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the United States securities laws, including,
but not limited to, Instruction IA(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
Section 7.09. Headings. Headings contained herein are included for
--------
convenience only and are not to be used in construing or interpreting any
provisions hereof.
34
<PAGE>
IN WITNESS WHEREOF, Infosys Technologies Limited and Bankers Trust Company have
duly executed this Agreement as of the day and year first set forth above and
all Registered Holders and Beneficial Owners of Receipts shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
INFOSYS TECHNOLOGIES LIMITED
By:
___________________________
Name:
Title:
BANKERS TRUST COMPANY
By:
___________________________
Name:
Title:
35
<PAGE>
EXHIBIT A
FORM OF FACE OF AMERICAN DEPOSITARY RECEIPT
CUSIP Number ___________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one-half of one deposited Share)
BANKERS TRUST COMPANY
AMERICAN DEPOSITARY RECEIPT
EVIDENCING AMERICAN DEPOSITARY SHARES
REPRESENTING EQUITY SHARES OF
NOMINAL VALUE Rs. 10 EACH OF
INFOSYS TECHNOLOGIES LIMITED
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF INDIA)
Bankers Trust Company, as depositary (hereinafter called the "Depositary"),
hereby certifies that_______________________________________ , or registered
assigns is the owner of _____________________________ American Depositary Shares
representing deposited Shares of nominal value Rs. 10 each, or evidence of
rights to receive such shares (herein called "Shares") of Infosys Technologies
Limited, incorporated under the laws of the Republic of India (herein called the
"Company"). At the date of the Deposit Agreement, each American Depositary
Share represents one-half of one Share deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the principal office
of The Industrial Credit and Investment Corporation of India Limited (herein
called the "Custodian"). The ratio of American Depositary shares to Shares is
subject to subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary's Corporate Trust Office is located at Four Albany
Street, New York, N.Y. 10006.
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of [___________], 1999 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all
Registered Holders and Beneficial Owners from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Registered Holders and Beneficial Owners of the
Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time received in respect of such Shares and held thereunder (such
Shares, securities, property, and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Depositary's
Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries of
certain provisions of the
<PAGE>
Deposit Agreement and are qualified by and subject to the detailed provisions of
the Deposit Agreement, to which reference is hereby made. Capitalized terms
defined in the Deposit Agreement and not defined herein shall have the meanings
set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of Receipts at the Depositary's Corporate Trust Office, or
at such other offices as the Depositary may designate, for the purpose of
withdrawal of the Deposited Securities represented by the American Depositary
Shares evidenced thereby, and upon payment of the fees and expenses of the
Depositary for the cancellation of Receipts as provided in Section 5.09 of the
Deposit Agreement and Exhibit B thereto and payment of all taxes and other
governmental charges payable in connection with such surrender and withdrawal of
the Deposited Securities, and subject to the terms and conditions of the
Company's Memorandum and Articles of Association, the Deposited Securities and
the Deposit Agreement, and to any other restriction applicable thereto, the
Registered Holder of such Receipts shall be entitled to delivery, to him or upon
his order, of the Shares and any other Deposited Securities at the time
represented by the American Depositary Shares evidenced by such Receipts.
Delivery of such Shares and other Deposited Securities may be made by (i) the
delivery of certificates in the name of the Registered Holder or as ordered by
him which, if required by law, shall be properly endorsed or accompanied by
properly executed instruments of transfer to such Registered Holder or as
ordered by him or (ii) book-entry transfer of Shares represented by the American
Depositary Shares evidenced by such Receipt to an account in the name of the
Registered Holder or as ordered by him and (b) the delivery at the office of the
Custodian of any other securities, property and cash to which such Registered
Holder is then entitled in respect of such Receipts to such Registered Holder or
as ordered by him. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary to be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank, and if the Depositary so requires, the Registered Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Shares and any other Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. In the case of surrender of
a Receipt evidencing a number of American Depositary Shares representing other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be recorded in the name of the Registered
Holder surrendering such Receipt, and shall issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share.
A stamp duty of 0.5 percent of the market value of the Shares will be
charged in respect of any withdrawal of Shares and such stamp duty will be
payable by the relevant holder. In addition, it will be necessary to obtain the
approval of the Reserve Bank of India for withdrawal of Shares or for the
Company to register Shares in the name of a person who is not a resident of
<PAGE>
India upon such withdrawal. Any subsequent transfer by the Registered Holder
after withdrawal will require the approval of the Reserve Bank of India, which
approval must be obtained by the purchaser and the Company under Section
29(1)(b) and 19(4), respectively, of the Foreign Exchange Regulation Act, 1973.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
Subject to the limitations set forth herein and in the Deposit Agreement,
the transfer of this Receipt is registrable on the books of the Depositary or
the Registrar, if any, by the Registered Holder hereof in person or by a duly
authorized attorney, upon surrender at the Depositary's designated transfer
offices of this Receipt, properly endorsed or accompanied by a properly executed
instrument of transfer and duly stamped as required by applicable law. This
Receipt may be split into other such Receipts, or may be combined with other
such receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt, the delivery of
any distribution thereon, or withdrawal of any Deposited Securities, the
Depositary, the Company, the Custodian, or Foreign Registrar may require (a)
payment from the depositor of the Shares or the presentor of the Receipt of a
sum sufficient to reimburse it for (i) any tax or other governmental charge and
any stock transfer or registration fees in respect of Receipts, (ii) any tax or
other governmental charge and any stock transfer or registration fees in respect
of registration of transfers of Shares or the Deposited Securities upon any
applicable register and (iii) any applicable fees as provided in this Receipt;
(b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.01 of the Deposit Agreement; (c) compliance with the provisions of the
Company's Memorandum and Articles of Association in effect from time to time and
resolutions and regulations of the Company's Board of Directors adopted pursuant
to such Memorandum and Articles of Association; and (d) compliance with (i) any
laws or governmental regulations relating to Receipts or American Depositary
Shares or to the withdrawal of Deposited Securities and (ii) such reasonable
regulations the Depositary and Company may establish consistent with the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Article 3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts, or the combination or split-up of Receipts, generally may
be suspended, during any period when the transfer books of the Depositary or any
register for Shares or other Deposited Securities are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of the Deposit
Agreement or this Receipt, or for any other reason. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, the surrender of outstanding
Receipts and withdrawal of Deposited Securities may be suspended only for (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of
<PAGE>
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities, or (iv) any other
reason that may at any time be specified in paragraph I(A)(1) of the General
Instructions to Form F-6 under the Securities Act, as such instructions may from
time to time be in effect, or any successor provision thereto. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares or other Deposited Securities
which are required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF REGISTERED HOLDER FOR TAXES AND OTHER CHARGES.
If any tax or other governmental charge shall become payable with respect
to this Receipt or with respect to any Deposited Securities represented by
American Depositary Shares evidenced hereby, such tax or other governmental
charge shall be payable by the Registered Holder hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any combination
or split-up hereof or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced hereby until such payment is made, and may
withhold or deduct from any dividends or other distributions and may sell any
part or all of the Deposited Securities represented by the American Depositary
Shares evidenced by this Receipt and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge (and any taxes or expenses arising out of such sale), the
Registered Holder hereof remaining liable for any deficiency.
5. REPRESENTATIONS AND WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, non-assessable, and free of
any preemptive rights, if any, of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that (i) Shares presented for deposit are not, and
the Receipts evidencing the American Depositary Shares representing such Shares
would not be, Restricted Securities, and (ii) the deposit of such Shares and the
sale of Receipts evidencing American Depositary Shares representing such Shares
by that person are not otherwise restricted under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts in respect thereof.
<PAGE>
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Registered Holder or
Beneficial Owner of a Receipt may be required by the Depositary or the Company
from time to time (i) to file with the Depositary, the Company, or the Custodian
such proof of citizenship or residence, taxpayer status, exchange control
approval, payment of applicable taxes or other governmental charges, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or such Receipt, or such information relating to the registration on
the books of the Company or the Foreign Registrar, if applicable, or any other
information the Depositary or the Company may deem necessary or appropriate to
evidence compliance with all applicable laws and regulations, and (ii) to
execute such certificates and to make such representations and warranties, as
the Depositary and the Registrar, as applicable, may deem necessary or proper or
as the Company may reasonably request by written request to the Depositary. The
Depositary may withhold the delivery or registration of transfer of any Receipt
or the distribution of any dividend or distribution of rights or of the sale
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made to the Company's and the Depositary's
satisfaction. The Depositary shall from time to time advise the Company of the
availability of any such proofs, certificates or other information and shall
provide the Company, in a timely manner, with copies thereof upon written
request by the Company, unless such disclosure is prohibited by law.
7. CHARGES OF DEPOSITARY.
The Depositary shall be entitled to receive the following remuneration and
reimbursement in respect of its services under this agreement (a) from the
Registered Holder (i) taxes and other governmental charges; (ii) such
registration fees as may from time to time be in effect for the registration of
transfers, if any, of Shares generally on the share register of the Company (or
any appointed agent of the Company for transfer and registration of Shares which
may be the Registrar) and accordingly applicable to transfer of Shares to the
name of the Depositary, a Custodian or their nominees or the person who makes a
withdrawal of Shares, on the making of deposits or withdrawals pursuant to
Sections 2.02 or 2.05 of the Deposit Agreement; (iii) such cable, telex,
facsimile transmission and delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or the
Registered Holders; (iv) such customary expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.08 of the
Deposit Agreement (including, without limitation, expenses incurred on behalf of
Registered Holders in connection with compliance with foreign exchange control
restrictions); (v) a fee not in excess of $5.00 per 100 Receipts (or portion
thereof) for the issuance and surrender, respectively of Receipts pursuant to
the Deposit Agreement; (vi) a fee not in excess of $0.02 per American Depositary
Share (or portion thereof) held for any cash distribution made pursuant to the
Deposit Agreement; and (vii) a fee for the distribution of the Deposited
Securities pursuant to the Deposit Agreement, such fee being an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities, but which securities were instead distributed by the Depositary to
Registered Holders, and (b) from the Company (i) such sums and amounts as may
have been agreed between the Company and the
<PAGE>
Depositary; (ii) all reasonable costs in connection with the delivery of
information under sections 4.10 and 5.06 of the Deposit Agreement; and (iii) in
respect of any exceptional fees, taxes, duties, charges, costs and expenses
which the Depositary finds it necessary or desirable or is required to undertake
or to pay in the performance of its obligations under this agreement, such
additional remuneration as shall be agreed between the Depositary and the
Company. Subject to the above paragraph all fees, taxes, duties, charges, costs
and expenses which are payable by the Company shall be paid by the Company to
the Depositary upon demand therefor.
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts against evidence of rights to receive
Shares from the Company (or any agent of the Company recording Share ownership).
No such issue of Receipts will be deemed a "Pre-Release" subject to the
restrictions of the following paragraph. Subject to the further terms and
provisions of this Article 8, the Depositary and its agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in Receipts.
In its capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may execute and deliver Receipts prior to
- -------- -------
the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (each
such transaction is hereinafter referred to as a "Pre-Release"). The Depositary
may, subject to the provisions of Section 2.06 of the Deposit Agreement, deliver
Shares upon the receipt and cancellation of Receipts which have been pre-
released, whether or not such cancellation is prior to the termination of such
Pre-Release or the Depositary knows that such Receipt has been pre-released.
The Depositary may receive Receipts in lieu of Shares in satisfaction of a Pre-
Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation and agreement from the person to whom Receipts or Shares are to
be delivered that such person, or its customer, beneficially owns the Shares or
Receipts to be remitted, as the case may be, and that such person or its
customer agrees to indicate the Depositary as owner of such Shares or Receipts
in its records and to hold such Shares or Receipts in trust for the Depositary
until such Shares or Receipts are delivered to the Depositary or the Custodian,
and unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or Receipts (b) at all times fully collateralized with
cash or other collateral the Depositary deems appropriate, (c) terminable by the
Depositary on five (5) business day notice, and (d) subject to such further
indemnities and credit regulation as the Depositary deems appropriate. The
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
-------- -------
the Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate and may change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to Pre-
Release transactions to be entered into hereunder with any particular Pre-
Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfil its obligations to the Registered
Holder under this Receipt and the Deposit Agreement, the collateral referred to
in clause (b) above shall be held by the Depositary for the benefit of the
Registered Holder as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities hereunder).
<PAGE>
The Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
9. TITLE TO RECEIPTS.
Subject to the limitations set forth herein or in the Deposit Agreement, it is a
condition of this Receipt, and every successive holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt,
when properly endorsed or accompanied by a properly executed instrument of
transfer and transferred in accordance with the terms of the Deposit Agreement,
is transferable by delivery with the same effect as in the case of a negotiable
instrument, provided, however, that until this Receipt is transferred on the
-----------------
books of the Depositary as provided in the Deposit Agreement, the Depositary and
the Company, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes, and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under
this Receipt or the Deposit Agreement to any Beneficial Owner or holder of a
Receipt unless such Beneficial Owner or holder is the Registered Holder hereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company furnishes the Securities and Exchange Commission (hereinafter
called the "Commission") with certain public reports and documents required by
foreign law or otherwise under the Securities Exchange Act. Such reports and
documents are available for inspection and copying by Registered Holders at the
public reference facilities maintained by the Commission located at 450 Fifth
Street, N.W. (Room 1024), Washington, D.C. 20549.
The Depositary shall make available for inspection by Registered Holders of
Receipts at the Depositary's Corporate Trust Office any notices, reports and
other communications received from the Company which are both (a) received by
the Depositary, the Custodian or a nominee of either as the holder of the
Deposited Securities and (b) generally available to the holders of such
Deposited Securities by the Company.
The Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any rules or regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian, of any notices, reports and other communications, including any proxy
soliciting materials, which are made generally available by the Company to
holders of its Shares or other Deposited Securities. If requested in writing by
the Company, the Depositary will arrange for the mailing, at the Company's
expense, of copies of such notices, reports and communications that are made
generally available by the Company
<PAGE>
to holders of its Shares or other Deposited Securities and/or, at the written
request of the Company and at the Company's expense, make such notices, reports
and other communications available to all Registered Holders on a basis similar
to that for holders of Shares or other Deposited Securities, or on such other
basis as the Company may advise the Depositary is required or as the Depositary
may be required by any applicable law or regulation. The Company will timely
provide the Depositary with the quantity of such notices, reports and
communications, including any proxy soliciting materials, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings. The Depositary and Custodian may rely upon such copies for all
purposes of this Receipt and the Deposit Agreement. The Depositary will, at the
expense of the Company, make such copy and such notices, reports and
communications available for inspection by Registered Holders at the
Depositary's Corporate Trust Office, at the office of the Custodian and at any
other designated transfer offices. The Depositary will keep at its Corporate
Trust Office a book or books for the transfer and registration of Receipts which
at all reasonable times shall be open for inspection by the Registered Holders
of Receipts; provided that such inspection shall not be for the purpose of
communicating with Registered Holders of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts. The Depositary may close the books, at any
time or from time to time, when reasonably deemed expedient by it in connection
with the performance of its duties under the Deposit Agreement.
Dated: _____________________
BANKERS TRUST COMPANY,
as Depositary
By: _______________________
The address of the Corporate Trust office is located at Four Albany Street, New
York, New York 10006.
<PAGE>
FORM OF REVERSE OF RECEIPT
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or the Custodian receives any cash dividend or
other cash distribution on any Deposited Securities, the Depositary will, if at
the time of receipt thereof any amounts received in a foreign currency can in
the judgment of the Depositary be converted on a reasonable basis into Dollars
transferable to the United States, and subject to the Deposit Agreement, if
practicable in the opinion of the Depositary, give notice to the Registered
Holders of its receipt of such payment, specifying the amount per Share payable
in respect of such dividend or distribution and the estimated date, as
determined by the Depositary for such payments and shall convert or cause to be
converted such dividend or distribution into Dollars and will promptly
distribute the Dollars thereby received (net of the fees, expenses and charges
of the Depositary as provided in the Deposit Agreement) to the Registered
Holders entitled thereto; provided, however, that in the event that any of the
-------- -------
deposited Shares is not entitled, by reason of its date of issuance, or
otherwise, to receive the full amount of such cash dividend or distribution, the
Depositary will make appropriate adjustments in the amounts distributed to the
Registered Holders of the Receipts issued in respect of such Shares; and
provided, further, that in the event that the Company or the Depositary is
- -------- -------
required to withhold and does withhold from such cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed on the Receipts issued in respect of such
Deposited Securities shall be reduced accordingly.
Whenever the Depositary or the Custodian receives any distribution
upon the Deposited Securities other than cash, Shares or rights pursuant Section
4.01, 4.03 or 4.04 of the Deposit Agreement, the Depositary will, after
obtaining, at the Company's expense, opinion(s) of United States and Indian
counsel, as applicable, reasonably satisfactory to the Depositary that the
proposed distribution does not violate any applicable laws or regulations, cause
such amount of the securities or property received by it to be distributed to
the Registered Holders of Receipts on the record date fixed pursuant to Section
4.06 of the Deposit Agreement, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution net of expenses of
the Depositary; provided, however, that if in the opinion of the Depositary such
-------- -------
distribution cannot be made among the Registered Holders of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by each
of them, or if for any other reason the Depositary deems such distribution not
to be lawful or feasible, the Depositary may adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the sale, at public or private sale, of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees, expenses and charges of the Depositary as
provided in Article 7 hereof and Section 5.09 and Exhibit B of the Deposit
Agreement) shall be distributed by the Depositary to the Registered Holders of
Receipts entitled thereto as in the case of a distribution received in cash, all
in the manner and subject to the conditions set forth in the Deposit Agreement.
<PAGE>
If any distribution made by the Company with respect to the Deposited
Securities and received by the Depositary shall remain unclaimed at the end of
12 years from the first date upon which such distribution is made available to
Registered Holders and subject to any applicable laws, all rights of the
Registered Holders to such distribution or the proceeds of the sale thereof
shall be extinguished and the Depositary shall return the same to the Company
for its own use and benefit (except for any distribution upon the liquidation of
the Company when the Depositary shall retain the same) and the Depositary shall
have no obligation therefor or liability with respect thereto.
If any distribution consists of a dividend in, or free distribution
of, Shares, the Depositary may, and shall if the Company so requests, distribute
to the Registered Holders of Receipts on the record date fixed pursuant to
Section 4.06 of the Deposit Agreement, in proportion to the number of American
Depositary Shares held by each of them, additional Receipts in the same form for
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.12
of the Deposit Agreement and the payment of the fees, expenses and charges of
the Depositary as provided in Article 7 hereof and Section 5.09 and Exhibit B of
the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares, the Depositary may, in its discretion, sell the amount of
Shares represented by the aggregate of such fractions, at public or private
sale, at such place or places and upon such terms as it may deem proper, and
distribute the net proceeds of any such sale in accordance with Section 4.01 of
the Deposit Agreement. If additional Receipts are not so distributed (except as
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities.
Before making any distribution or other payment in respect of any
Deposited Securities, the Company will make such deductions, if any, which, by
any applicable laws or regulations, the Company is required to make in respect
of any income, capital gains or other taxes (including interest and penalties)
and the Company may also deduct the amount of any tax or governmental charges
payable by the Company or for which the Company might be made liable in respect
of such distribution or gains or other payments or any document signed in
connection therewith or any capital gains or other taxes payable by the
Registered Holders. The Company or its agent will remit to the appropriate
governmental agency in India all amounts withheld and owing to such agency. The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Registered Holders of Receipts.
<PAGE>
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall as soon as
practicable give notice to the Registered Holders of such offer (unless notified
by the Company that such offer or invitation should not be made), specifying, if
applicable, the earliest date established for acceptance thereof, the last date
established for acceptance thereof and the manner by which and time during which
Registered Holders may request the Depositary to exercise such rights as
provided below or, if such be the case, give details of how the Depositary
proposes to distribute the rights or to dispose of such rights and make the net
proceeds available to such Registered Holders in accordance with the procedures
for distributing cash provided for in Section 4.01 of the Deposit Agreement, or,
if by the terms of such rights offering or for any other reason it would not be
lawful or feasible for the Depositary either to make such rights available to
any Registered Holders or to dispose of such rights and make the net proceeds
available to such Registered Holders, then the Depositary shall allow the rights
to lapse. If at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to all or certain Registered Holders but not to other Registered
Holders, the Depositary may distribute to any Registered Holder to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Registered Holder, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed
generally, if the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to certain Registered Holders, the
Depositary will, subject to applicable law, make such rights available to such
Registered Holders upon written notice from the Company to the Depositary that
(a) the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Registered Holder has executed such documents as the
Company and the Depositary have determined are reasonably required under
applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Registered Holders, then upon instruction from any such
Registered Holder pursuant to such warrants or other instruments to the
Depositary from such Registered Holder to exercise such rights, upon payment by
such Registered Holder to the Depositary for the account of such Registered
Holder of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Registered Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Registered Holder.
As agent for such Registered Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver
Receipts to such Registered Holder. In the case of a distribution pursuant to
this paragraph, such Receipts shall be legended in accordance with applicable
U.S. laws, and shall be subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
<PAGE>
If the Depositary determines in its discretion that it is not lawful
or feasible to make such rights available to all or certain Registered Holders,
it may sell the rights, warrants or other instruments (either by public or
private sale and otherwise at its discretion subject to South African laws and
regulations) in proportion to the number of American Depositary Shares held by
the Registered Holders to whom it has determined it may not lawfully or feasibly
make such rights available, allocate the net proceeds of such sales (net of the
fees, expenses and charges of the Depositary as provided in Section 5.09 and
Exhibit B of the Deposit Agreement and all taxes and other governmental charges
payable in connection with such rights, and subject to the terms and conditions
of the Deposit Agreement) for the account of such Registered Holders otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Registered
Holders on account of exchange restrictions or the date of delivery of any
Receipt or otherwise.
The Depositary will not offer rights to Registered Holders unless it
has received from the Company evidence, as provided in Section 5.07 of the
Deposit Agreement, to the effect that (i) a registration statement under the
Securities Act covering such offering is in effect or (ii) such offering does
not require registration under the Securities Act. If a Registered Holder of
Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no registration under the Securities Act,
the Depositary will not effect such distribution unless it has received an
opinion from recognized counsel in the United States for the Company
satisfactory to the Depositary upon which the Depositary may rely that such
distribution to such Registered Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Registered
Holders in general or any Registered Holder in particular, any foreign exchange
exposure or loss incurred in connection with such sale, or any liability to the
purchaser of such rights, warrants or other instruments.
Notwithstanding any provision of the Deposit Agreement or set forth
herein to the contrary, the Company shall not issue any rights or bonus shares
in respect of the Deposited Securities nor shall the proceeds of a sale of such
rights or bonus shares be repatriated by the Company unless there is approval by
the Reserve Bank of India to do so.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, received by way of dividends or other distributions or in the form of
the net proceeds from the sale of securities, property or rights, and if, at the
time, the foreign currency so received can, in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly convert or cause
to be converted as, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency and any expenses incurred on behalf of the Registered Holder in
complying with currency exchange control or other governmental requirements)
shall be promptly distributed to the Registered Holders
<PAGE>
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants or instruments upon surrender thereof for cancellation,
in either case, without liability for interest thereon. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Registered Holders on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09
and Exhibit B of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
have discretion and authority to file such application for approval or license,
if any, as it may deem desirable. In no event, however, shall the Depositary be
obligated to make such a filing, nor shall it be liable for failure to receive
approval or licence.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible into Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary is not obtainable, or if any such approval or
license is not obtainable at a reasonable cost or within a reasonable period as
determined by the Depositary, the Depositary may in its discretion, but subject
to applicable laws and regulations, either (i) distribute such foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) to the Registered Holders of Receipts entitled to receive the same, or
(ii) hold such foreign currency for the respective accounts of such persons,
uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can
be effected as aforesaid for distribution to some but not all of the Registered
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Registered Holders of Receipts entitled
thereto and, with respect to the balance of such foreign currency, shall in its
discretion, but subject to any applicable law and regulations, either (i)
distribute or make available for distribution such balance to the persons who
were Registered Holders of Receipts entitled thereto with respect to whom such
conversion could not then be effected, or (ii) hold such balance for the
respective accounts of such persons, uninvested and without liability for
interest.
<PAGE>
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Registered Holders of Receipts who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting, or (b) on or after which each American Depositary Share will represent
the changed number of Shares, subject to the provisions of the Deposit
Agreement. Such record date will, to the extent practicable, be the same record
date as any corresponding record date set by the Company for such purpose.
16. VOTING OF DEPOSITED SECURITIES.
As soon as practicable after receipt of notice of any meeting of holders of
Shares or other Deposited Securities the Depositary shall at the Company's
expense, mail to the Registered Holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting, (b) a statement
that such Registered Holders of Receipts at the close of business on a specified
record date will be entitled, subject to any applicable provision of Indian law,
of the Deposited Securities or of the Memorandum and Articles of Association of
the Company, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given, including an
express indication that the Depositary shall notify such instruction to the
Chairman of the Company, or such other director that the Chairman may designate,
and appoint the Chairman or that other person designated by the Chairman as
representative of the Depositary and the Registered Holders to attend such
meeting and vote the Deposited Securities in the direction so instructed by such
Registered Holder and (d) a statement that if the Depositary does not receive
instructions from a Registered Holder, such Registered Holder may under certain
circumstances be deemed to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company to vote such Deposited
Securities. Upon the written request of a Registered Holder on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor insofar as is practicable and permitted
under the applicable provisions of law and of the Memorandum and Articles of
Association governing Deposited Securities of the Company to vote or cause to be
voted the amount of Deposited Securities represented by such American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request.
For the purposes of Section 4.07 of the Deposit Agreement, in the event
that the Depositary receives express instructions from Registered Holders to
demand a poll with respect to any matter to be voted on by Holders, the
Depositary may notify the Chairman or a person designated by the Chairman of
such instructions and request the Chairman or such designee to demand a poll
with respect to such
<PAGE>
matters and the Company agrees that the Chairman or such designee will make
their reasonable best efforts to demand a poll at the meeting at which such
matters are to be voted on and to vote such Shares in accordance with such
Registered Holder's instructions; provided, however, that prior to any demand
-------- --------
of a poll or request to demand poll by the Depositary upon the terms set forth
herein, the Company shall, at its expense, deliver to the Depositary an opinion
of Indian counsel, reasonably satisfactory to the Depositary, stating that such
action is in conformity with all applicable laws and regulations and that the
demand for a poll by the Depositary or a person designated by the Depositary
will not expose the Depositary to any liability to or claim by any person. The
Depositary shall not have any obligation to demand a poll or request the demand
of a poll if the Company shall not have delivered to the Depositary the local
counsel opinion set forth in this paragraph.
Under Indian law voting of Shares is by show of hands unless a poll is
demanded by a member or members present in person or by proxy holding at least
one-tenth of the total Shares entitled to vote on the resolution or by those
holding paid up capital of at least Rs. 50,000. A proxy may not vote except in
a poll.
The Depositary agrees not to, and shall ensure that the Custodian and each
of their nominees does not, vote, attempt to exercise the right to vote, or in
any way make use of, for purposes of establishing a quorum or otherwise, the
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by a Receipt other than in accordance with such instructions
from the Registered Holder , or as provided below. The Depositary may not
itself exercise any voting discretion over any Shares. If the Depositary does
not receive instructions from any Registered Holder with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Registered Holder's Receipts on or before the date established by the
Depositary for such purpose, such Registered Holder shall be deemed, and the
Depositary shall deem such Registered Holder, to have instructed the Depositary
to give discretionary proxy to a person designated by the Company to vote such
Deposited Securities; provided that (x) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information as promptly as practicable
in writing) that (i) the Company does not wish such proxy given, (ii)
substantial opposition exists or (iii) the rights of the holders of Shares will
be adversely affected and (y) the Depositary shall not have any obligation to
give such discretionary proxy to a person designated by the Company if the
Company shall not have delivered to the Depositary the local counsel opinion and
representation letter set forth in the next paragraph.
Prior to each request for a discretionary proxy upon the terms set forth
herein, the Company shall, at its own expense, deliver to the Depositary (aa) an
opinion of Indian counsel, reasonably satisfactory to the Depositary, stating
that such action is in conformity with all applicable laws and regulations (bb)
a representation and indemnity letter from the Company (executed by a senior
officer of the Company) which (i) designates the person to whom any
discretionary proxy should be given, (ii) confirms that the Company wishes such
discretionary proxy to be given and (iii) certifies that the Company has not and
shall not request the discretionary proxy to be given as to any matter as to
which substantial opposition exists or which may adversely affect the rights of
holders of Shares.
<PAGE>
Shares which have been withdrawn from the depositary facility and
transferred on the Company's Register of Members to a person other than the
Depositary or its nominee may be voted by such persons. However, Registered
Holders who wish to withdraw Shares to vote at a shareholders meeting may not
receive sufficient advance notice of shareholders meetings to enable them to
make such withdrawal of the Shares in time to vote at the meeting. In addition,
once withdrawn from the depositary facility, Shares may not be redeposited.
The directors of the Company may decline to register the transfer of
Shares on certain grounds.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION,
RECAPITALIZATIONS, ETC.
Upon any change in nominal value, sub-division, cancellation,
consolidation, or any other reclassification of Deposited Securities, or upon
any reduction of capital, recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Company or to which it is a
party, any securities which shall be received by the Depositary or a Custodian
in exchange for or in conversion of or replacement or otherwise in respect of
such Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and Receipts shall, subject to the provisions of the Deposit
Agreement, and applicable law, evidence American Depositary Shares representing
the right to receive such additional Deposited Securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement, the receipt of an
opinion of counsel to the Company satisfactory to the Depositary that such
distributions are not in violation of any applicable laws or regulations,
execute and deliver additional Receipts as in the case of a stock dividend on
the Deposited Securities, or call for the surrender of outstanding Receipts, to
be exchanged for new Receipts specifically describing such new Deposited
Securities. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Registered Holders, the
Depositary may with the Company's approval and shall if the Company requests,
subject to receipt of an opinion of Company's counsel reasonably satisfactory to
the Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales for the account of the Registered Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Registered Holders and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.01 of the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Registered Holders in
general or any Registered Holder or Registered Holders in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
<PAGE>
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company nor any of their
respective directors, officers, employees or agents, assumes any obligation or
shall be subject to any liability (including, without limitation, as to the
Depositary and Custodian, liability with respect to the validity or worth of the
Deposited Securities) under this Deposit Agreement to Registered Holders or
Beneficial Owners of Receipts, other than that each of them agrees to perform
its obligations and duties specifically set forth in this Deposit Agreement
without negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expenses and liabilities be furnished as often as may be required,
and the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither the Depositary, the Custodian nor the Company shall be liable for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Registered Holder or Beneficial Owner of a Receipt or any other person believed
by it in good faith to be competent to give such advice or information. The
Depositary, the Custodian and the Company may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor its agents shall be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner or effect of any such vote made either with or without request, or
for not exercising any right to vote, as long as any such action or non-action
is in good faith and in accordance with the terms of this Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR ADDITIONAL CUSTODIANS.
Subject to the provisions of the next paragraph, the Company may terminate
the appointment of the Depositary under the Deposit Agreement by giving at least
60 days' notice in writing to the Depositary and the Custodian, and the
Depositary may resign as Depositary by giving at least 60 days' notice in
writing to
<PAGE>
the Company and the Custodian. Within 30 days after the giving of such notice,
notice thereof shall be duly given by the Depositary to the Registered Holders.
In the event a successor depositary has not been appointed and accepted its
appointment within 60 days, the Depositary may terminate the Deposit Agreement
as provided in Section 6.02 thereof.
Notwithstanding any other provision of the Deposit Agreement or
hereof, the Company may not appoint a successor depositary hereunder or
establish another deposit facility with another depositary bank for a period of
ten years from the date of hereof unless (a) a dispute with respect to the
services provided by the Depositary hereunder remains unresolved after a period
of three months from the date such problem was first brought to the attention of
the Depositary by the Company or (b) the relevant pro rata amount of any
contribution made to the Company by the Depositary is repaid to the Depositary.
The termination of the appointment or the resignation of the
Depositary shall take effect on the date specified in such notice; provided that
no such termination of appointment or resignation shall take effect until the
appointment by the Company of a successor Depositary as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company, unless the Company shall desire the termination of the
Deposit Agreement as provided in Section 6.02 thereof, shall use its best
efforts to appoint a successor depositary, which shall be a bank or trust
company having its principal office in the Borough of Manhattan, The City of New
York with effect from the date of termination or resignation specified in such
notice as soon as reasonably possible following notice of such termination or
resignation. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; provided, however, that such
-------- -------
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Deposited Securities to such
successor and shall deliver to such successor a list of the Registered Holders
of all outstanding Receipts and such other information relating to Receipts and
Registered Holders thereof as the successor may reasonably request. The
Depositary shall promptly mail notice of the appointment of the successor
depositary to the Registered Holders of Receipts and the Custodian.
Any corporation into or with which the Depositary may be converted,
merged or consolidated shall be the successor of such Depositary without the
execution or filing of any document or any further act.
The Depositary may appoint one or more agents to act as its Custodian
under the Deposit Agreement. The Depositary has initially appointed The
Industrial Credit and Investment Corporation of India Limited as Custodian and
agent of the Depositary for the purpose of the Deposit Agreement. Any Custodian
in acting under the Deposit Agreement shall be subject at all times and in all
respects to the directions of the Depositary, and shall be responsible solely to
it. Any Custodian may resign
<PAGE>
and be discharged from its duties by notice of such resignation delivered to the
Depositary at least thirty (30) days prior to the date on which such resignation
is to become effective. If upon the effectiveness of such resignation there
shall be no Custodian acting, the Depositary shall, promptly after receiving
such notice, appoint, subject to the written approval of the Company which shall
not unreasonably withheld, a substitute custodian that is organized under the
laws of India which shall thereafter be a Custodian. Whenever the Depositary in
its discretion determines that it is in the best interest of the Registered
Holders to do so, it may appoint substitute or additional custodian or
custodians, which shall thereafter be one of the Custodians under the Deposit
Agreement subject in each instance to the written approval of the Company. Upon
demand of the Depositary any previous Custodian shall deliver the Deposited
Securities held by it to any other Custodian or such substitute or additional
custodian or custodians as the Depositary shall instruct. Each such substitute
or additional custodian or custodians shall deliver to the Depositary, forthwith
upon its appointment an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary, any Custodian then
acting shall forthwith become, without any further act or writing, the agent of
such successor depositary, and the appointment of such successor depositary
shall in no way impair the authority of any Custodian; provided, however, that
-------- -------
the successor depositary so appointed shall, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority as agent
of such successor depositary.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or have the effect of increasing,
any fees or charges payable by the Registered Holders of Receipts (other than
the fees of the Depositary for the execution and delivery or cancellation of
Receipts and taxes on other governmental charges, registration fees and cable,
telex or facsimile transmission, delivery expenses), or which shall otherwise
prejudice any substantial existing right of Registered Holders of Receipts,
shall not become effective as to outstanding Receipts until the expiration of
thirty (30) days after notice of such amendment shall have been given to the
Registered Holders of outstanding Receipts. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the American Depositary Shares to
be registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Registered Holders, shall be deemed not to prejudice any substantial
rights of Registered Holders or Beneficial Owners. Every Registered Holder of
an outstanding Receipt at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Registered Holder of any
<PAGE>
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby except an order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed rules. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Registered Holders or within any other
period of time as required for compliance.
21. TERMINATION OF DEPOSIT AGREEMENT
The Depositary shall at any time, at the direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Registered Holders of all Receipts then outstanding at least 90 days prior to
the date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement by mailing notice of such termination to the
Company and the Registered Holders of all Receipts then outstanding, if at any
time 60 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in the
Deposit Agreement. Within 30 days after the giving of such notice, notice of
such termination shall be duly given by the Depositary to the Registered Holders
of all Receipts then outstanding.
During the period beginning on the date of the giving of such notice
by the Depositary to the Registered Holders and ending on the date on which such
termination takes effect, each Registered Holder of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 5.09 and Exhibit B of the Deposit Agreement, and (c) payment of any
applicable taxes or other governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt.
If any Receipts shall remain outstanding after the date of
termination, the Depositary shall as soon as reasonably practicable sell the
Deposited Securities then held under the Deposit Agreement by public or private
sale as it may deem appropriate (but shall have no liability with respect to
such sale) and, as soon as reasonably practicable thereafter, deliver the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Registered Holders of Receipts which have not theretofore been
surrendered, such Registered Holders thereupon becoming general creditors of the
Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash without interest (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Registered Holder of such Receipt
in accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or other governmental charges). Upon the termination of the
Deposit Agreement, the
<PAGE>
Depositary and the Company shall be discharged from all obligations under the
Deposit Agreement except for their respective obligations under Section 5.08 of
the Deposit Agreement and the Company's obligations to the Depositary under
Section 5.09 of the Deposit Agreement.
<PAGE>
EXHIBIT B
CHARGES OF THE DEPOSITARY
<TABLE>
<CAPTION>
Service Rate By Whom Paid
<S> <C> <C> <C>
(1) Issuance of Receipts or the Up to $0.05 per American Party for whom deposits are
cancellation of Receipts Depositary Receipt (or made
upon withdrawal of Deposited fraction thereof)
Securities
(2) Receiving and paying Up to $0.02 per American Party to whom distribution,
distributions of cash Depositary Share for each or for whom the sale or
distribution exercise of rights, is made
</TABLE>
The Depositary shall be entitled to receive the following remuneration and
reimbursement in respect of its services under this agreement (a) from the
Registered Holder (i) taxes and other governmental charges; (ii) such
registration fees as may from time to time be in effect for the registration of
transfers, if any, of Shares generally on the share register of the Company or
Foreign Registrar and accordingly applicable to transfer of Shares to the name
of the Depositary, a Custodian or their nominees or the person who makes a
withdrawal of Shares, on the making of deposits or withdrawals pursuant to
Sections 2.02 or 2.06; (iii) such cable, telex, facsimile transmission and
delivery expenses as are expressly provided in this Deposit Agreement to be at
the expense of persons depositing Shares or the Registered Holders; (iv) such
customary expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.08 of the Deposit Agreement (including,
without limitation, expenses incurred on behalf of Registered Holders in
connection with compliance with foreign exchange control restrictions); (vii) a
fee for the distribution of the Deposited Securities pursuant to this Deposit
Agreement, such fee being an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to in Section 4.02. and 4.03
respectively of the Deposit Agreement which would have been charged as a result
of the deposit of such securities, but which securities were instead distributed
by the Depositary to Registered Holders.
The Company after consultation and agreement between the Depositary and the
Company as to the amount and nature of any other charges, will pay those other
charges of the Depositary and those of any Registrar, if any, plus reasonable
out-of-pocket expenses in accordance with written agreements entered into
between the Depositary and the Company from time to time.
