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EXHIBIT 1.1
REDIFF.COM INDIA LIMITED
- AMERICAN DEPOSITARY SHARES
REPRESENTING
- EQUITY SHARES
(PAR VALUE RS. 10 PER SHARE)
UNDERWRITING AGREEMENT
_________, 2000
Goldman, Sachs & Co.,
Credit Suisse First Boston Corporation
Robert Fleming Inc.
As representatives of the several Underwriters
named in Schedule I hereto
(the "Representatives"),
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Rediff.com India Limited, a limited liability company formed under the
laws of the Republic of India (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of _______ American
Depositary Shares representing an aggregate of ________ equity shares (par value
Rs. 5 per share) (the "Equity Shares"), of the Company (the "Firm ADSs") and, at
the election of the Underwriters, up to _______ additional American Depositary
Shares (the "Optional ADSs") representing an aggregate of ________ Equity
Shares. The Firm ADSs and the Optional ADSs that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the "ADSs".
The Equity Shares represented by the Firm ADSs are hereinafter called the "Firm
Shares" and the Equity Shares represented by the Optional ADSs are hereinafter
called the "Optional Shares" and the Firm Shares and the Optional Shares are
herein collectively called the "Shares".
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), dated as of __________, 2000, among the Company, Citibank, N.A., as
depositary (the "Depositary"), and holders from time to time of the American
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Depositary Receipts (the "ADRs") issued by the Depositary and evidencing the
ADSs. Each ADS will initially represent the right to receive one Equity Share
deposited pursuant to the Deposit Agreement.
It is understood by the parties that the Underwriters are offering ADSs
in the United States and internationally outside of India.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form F-1 (File No. 333-_____)
(the "Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form, other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing; no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or to the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; and
such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to
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the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein;
(d) A registration statement on Form F-6 (File No. 333-____) in
respect of the ADSs has been filed with the Commission; such
registration statement in the form heretofore delivered to you and,
excluding exhibits, to you for each of the other Underwriters, has been
declared effective by the Commission in such form; no other document
with respect to such registration statement has heretofore been filed
with the Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (the various
parts of such registration statement, including all exhibits thereto,
each as amended at the time such part of the registration statement
became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became effective
conformed, and any further amendments thereto will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not, as of the
applicable effective date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(e) The Company has no direct or indirect subsidiaries;
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(f) The Company has not sustained since the date of the latest
audited financial statements included in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus;
(g) The Company has good and marketable title to all real
property and good and marketable title to all personal property owned by
it, in each case free and clear of all liens, encumbrances, third party
rights or interests, and defects or any other restriction except such as
are described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company; and any real
property and buildings or personal property held under lease by the
Company are held by it under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such real property and buildings or
personal property, by the Company and no material default (or event
which with notice or lapse of time, or both, would constitute such a
default) by the Company has occurred and is continuing under any of such
leases;
(h) Since the date of the latest audited financial statements
included in the Prospectus, the Company has not (A) entered into or
assumed any contract, (B) incurred or agreed to incur any liability
(including any contingent liability) or other obligation, (C) acquired
or disposed of or agreed to acquire or dispose of any business or any
other asset or (D) assumed or acquired or agreed to assume or acquire
any liabilities (including contingent liabilities) that would be
material to the Company, and that are not otherwise described in the
Prospectus;
(i) The Company has been duly formed and is validly existing as
a company limited by shares in good standing under the laws of the
Republic of India, with legal rights, power and authority (corporate and
other) to own, use, lease and operate its properties and conduct its
business and as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the
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laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or be in good
standing as a foreign corporation would not, individually or in the
aggregate, have a material adverse effect on current [or future]
financial positions, stockholders' equity or results of operations of
the Company, taken as a whole (a "Material Adverse Effect"), except
where the failure to be so qualified; the Memorandum of Association and
Articles of Association of the Company comply with the requirements of
applicable laws of the Republic of India and are in full force and
effect;
(j) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Equity Shares
contained in the Prospectus; all of the ADSs have been duly approved for
quotation on the Nasdaq National Market System ("NASDAQ"), subject to
issuance; neither the holders of outstanding shares of capital stock of
the Company nor any other persons are entitled to preemptive or other
rights to acquire the Shares or the ADSs; there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or
options to purchase from the Company, or obligations of the Company to
issue, the Equity Shares or any other class of capital stock of the
Company except as described in the Prospectus; the Shares may be freely
deposited by the Company with the Depositary against issuance of ADRs
evidencing ADSs; the ADSs and the Shares are freely transferable by the
Company to or for the account of the several Underwriters and (to the
extent described in the Prospectus) the initial purchasers thereof; and,
except as described in the Prospectus, there are no material
restrictions on subsequent transfers of the Shares or the ADSs under the
laws of the Republic of India and of the United States;
(k) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment for the ADSs as provided
herein, will be duly and validly issued and fully paid and
non-assessable, will be free and clear of all liens, encumbrances,
equities or claims and will conform to the description of the Equity
Shares contained in the Prospectus;
(l) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; upon issuance by the
Depositary of ADRs
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evidencing ADSs against the deposit of Shares in respect thereof in
accordance with the provisions of the Deposit Agreement, such ADRs will
be duly and validly issued and the persons in whose names the ADRs are
registered will be entitled to the rights specified therein and in the
Deposit Agreement; and the Deposit Agreement and the ADRs conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(m) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities
(hereinafter referred to as a "Governmental Agency") having jurisdiction
over the Company or any of its properties (hereinafter referred to as
"Governmental Authorizations") required for the deposit of Shares and
the issuance of ADSs in respect thereof, and for the authorization,
execution and delivery by the Company of this Agreement and the Deposit
Agreement have been obtained or made and are in full force and effect;
(n) This Agreement has been duly authorized, executed and
delivered by the Company;
(o) All dividends and other distributions declared and payable
on the shares of capital stock of the Company may, under the current
laws and regulations of the Republic of India, be paid in Indian rupees
that may be converted into foreign currency that may be freely
transferred out of the Republic of India, and, except as disclosed in
the Prospectus, all such dividends and other distributions will not be
subject to withholding or other taxes under the laws and regulations of
the Republic of India and are otherwise free and clear of any other tax,
withholding or deduction in the Republic of India and without the
necessity of obtaining any Governmental Authorization in the Republic of
India;
(p) The issue and sale of the ADSs to be sold by the Company
hereunder, the deposit of the Shares being deposited with the Depositary
against issuance of the ADRs evidencing the ADSs and the compliance by
the Company with all of the provisions of this Agreement and the Deposit
Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the provisions
of the Memorandum of Association, Articles of Association of the Company
or business licenses of the Company or any law or statute or any order,
rule or regulation of any Governmental
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Agency having jurisdiction over the Company or any of its properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such Governmental Agency is required for
the issue and sale of the Shares or the ADSs, for the deposit of the
Shares being deposited with the depositary against issuance of ADRs
evidencing the ADSs to be delivered or the consummation by the Company
of the transactions contemplated by this Agreement, except (A) the
registration under the Act of the Shares and the ADSs, (B) such
Governmental Authorizations as have been duly obtained and are in full
force and effect and copies of which have been furnished to you, (C) the
approval by the National Association of Securities Dealers, Inc.
("NASD") of the terms of the sale of the Shares and the ADSs and (D)
such Governmental Authorizations as may be required under state
securities or Blue Sky laws of any state of the United States or any
laws of jurisdictions outside the Republic of India and the United
States in connection with the purchase and distribution of the ADSs by
or for the account of the Underwriters;
(q) Each of this Agreement, the Deposit Agreement and the ADRs
evidencing the ADSs is in proper form to be legal and valid under the
laws of the Republic of India and to ensure the legality, validity,
enforceability or admissibility into evidence in the Republic of India
of this Agreement, it is not necessary that this Agreement, the Deposit
Agreement, the ADRs or any other documents be filed or recorded with any
court or other authority in the Republic of India or that any Indian
stamp or similar tax be paid on or in respect of this Agreement, the
Deposit Agreement, the ADRs or any other documents to be furnished
hereunder;
(r) The Company is not in violation of its Memorandum of
Association or Articles of Association or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(s) Except as disclosed in the Prospectus under the Caption
"Taxation - Stamp Duty and Transfer Tax", no stamp or other issuance or
transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Company to the Republic
of India or any political subdivision or taxing authority thereof or
therein in connection with (A) the creation, allotment and issuance of
the Shares, (b) the deposit with the Depositary of Shares by the Company
against the issuance of ADRs evidencing ADSs, (C) the sale and delivery
by the Company of the ADSs to or for the respective accounts of the
Underwriters or (D) the execution and delivery of this Agreement;
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(t) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the Republic of India or any political
subdivision or taxing authority thereof or therein in connection with
(A) the creation, allotment and issuance of the Shares, (B) the deposit
with the Depositary of Equity Shares by the Company against the issuance
of ADRs evidencing ADSs, (C) the sale and delivery by the Company of the
ADSs to or for the respective accounts of the Underwriters, (D) the
execution and delivery of this Agreement or (E) the sale and delivery
outside the Republic of India by the Underwriters of the ADSs to the
initial purchasers thereof.
(u) The Company has not taken, directly or indirectly, any
action which was designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the ADSs;
(v) The statements set forth in the Prospectus under the
captions "Description of Equity Shares" and "Description of American
Depositary Receipts", insofar as they purport to constitute a summary of
the terms of the Equity Shares and the ADSs, "Shares Eligible for Future
Sale" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(w) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company is a
party or of which any property of the Company is the subject which, if
determined adversely to the Company, would individually or in the
aggregate have Material Adverse Effect; and, to the Company's knowledge,
no such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(x) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(y) Other than as set forth in the Prospectus, the Company owns
or has valid licenses in full force and effect or otherwise have the
legal right to use, or can acquire on reasonable terms, all patents,
patent rights, inventions, trademarks, service marks, trade names,
domain names, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), information, proprietary rights and processes
("Intellectual Property") currently employed by it in connection with
the business currently operated
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by it and without any conflict with or infringement of the interests of
others, and has taken all reasonable steps necessary to secure interests
in such Intellectual Property from its contractors; except as set forth
in the Prospectus, the Company is not aware of outstanding options,
licenses or agreements of any kind relating to the Intellectual Property
of the Company which are required to be set forth in the Prospectus,
and, except as set forth in the Prospectus, the Company is not a party
to or bound by any options, licenses or agreements with respect to the
Intellectual Property of any other person or entity which are required
to be set forth in the Prospectus; none of the technology employed by
the Company has been obtained or is being used by the Company in
violation of any contractual fiduciary obligation binding on the Company
or, to the knowledge of the Company, any of its directors, officers or
employees or otherwise in violation of the rights of any persons; except
as disclosed in the Prospectus, the Company has not received any written
or oral communications alleging that the Company has violated, infringed
or conflicted with, or, by conducting its business would violate,
infringe or conflict with any of the Intellectual Property of any other
person or entity other than any such violations, infringements or
conflicts which, individually or in the aggregate, have not had and are
not reasonably likely to result in a material adverse effect on the
current or future consolidated financial position, shareholders' equity
or results of operations of the Company; neither the execution nor
delivery of this Agreement nor the operation of the Company's business
by the employees of the Company will result in any breach or violation
of the terms, conditions or provisions of, or constitute a default
under, any material contract, covenant or instrument known to the
Company under which any of such employees is now obligated; and the
Company has taken and will maintain reasonable measures to prevent the
unauthorized dissemination or publication of its confidential
information and, to the extent contractually required to do so, the
confidential information of third parties in their possession;
(z) The Registration Statement, the Prospectus and the ADS
Registration Statement and the filing of the Registration Statement, the
Prospectus and the ADS Registration Statement with the Commission have
been duly authorized by and on behalf of the Company, and the
Registration Statement and the ADS Registration Statement have been duly
executed pursuant to such authorization by and on behalf of the Company;
(aa) Except as disclosed in the Registration Statement and the
Prospectus, the Company has all necessary licenses, consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all necessary declarations and filings with, all
Governmental Agencies (including, without limitation, the Foreign
Investment Promotion Board of the Government of India, to own, lease,
license and use its
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properties and assets and to conduct its business in the manner
described in the Prospectus and such licenses, consents, authorizations,
approvals, orders, certificates or permits contain no burdensome
restrictions or conditions not described in the Registration Statement
or the Prospectus. Except as described in the Prospectus, the Company
has no reason to believe that any regulatory body is considering
modifying, suspending or revoking any such licenses, consents,
authorizations, approvals, orders, certificates or permits and the
Company is in compliance with the provisions of all such licenses,
consents, authorizations, approvals, orders, certificates or permits in
all material respects;
(bb) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company or to include any securities of
the Company with the ADSs registered pursuant to the Registration
Statement, except as described in the Prospectus or as have been validly
waived in writing in connection with the offering of the ADSs
contemplated hereby;
(cc) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended, and is not likely to become a
PFIC; the Company believes that the Shares and the ADSs should not be
treated as stock of a PFIC for Unites States federal income tax
purposes;
(dd) The Company does not do business with the government of
Cuba or with any person or affiliate located in Cuba within the meaning
of Section 517.075, Florida Statutes;
(ee) All returns, reports or filings which ought to have been
made by or in respect of the Company for taxation purposes have been
made and all such returns are up to date, correct and on a proper basis,
and are not the subject of any dispute with the relevant revenue or
other appropriate authorities and the provisions included in the audited
accounts as set out in the Prospectus included appropriate provision
required under Indian generally accepted accounting principles ("Indian
GAAP") for all taxation in respect of accounting periods ended on or
before the accounting reference date to which such audited accounts
relate for which the Company was then or might reasonably be expected
thereafter to become or have become liable; the Company has not received
notice of any tax deficiency that has been asserted against the Company
which, if so assessed, would have a material adverse effect on the
business, results of operations or financial condition of the Company;
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(ff) Except as disclosed in the Prospectus, no indebtedness
(actual or contingent) and no contract or arrangement (other than
employment contracts or arrangements) is outstanding between the Company
and any director of the Company or any person connected with such
director (including his spouse, infant children, any company or
undertaking in which he holds a controlling interest);
(gg) No material labor dispute, work stoppage, slow down or
other conflict with the employees of the Company exists or is
threatened;
(hh) No holder of any of the Shares or the ADSs after the
completion of the offering contemplated hereby is or will be subject to
any liability in respect of any liability of the Company by virtue only
of its holding of any such Shares or ADSs. Except as disclosed in the
Prospectus, there are no limitations on the rights of holders of the
Shares or the ADSs to hold, vote or transfer their securities;
(ii) The historical combined financial statements (and the notes
thereto) of the Company included in the Prospectus were prepared in
accordance with generally accepted accounting principles in the United
States ("U.S. GAAP") consistently applied throughout the period
involved, and fairly present the combined financial condition and
results of operations of the Company at the dates and for the periods
presented; and notes thereto included in the Prospectus were prepared in
accordance with the applicable requirements of the Act, the Company's
assumptions provide a reasonable basis for presenting the significant
effects directly attributable to the events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions. No other financial statements, schedules or pro forma
financial information of the Company are required by the Act or the
rules and regulations thereunder to be included in the Prospectus except
such as have been omitted with the approval of the accounting staff of
the Division of Corporation Finance of the Commission;
(jj) Deloitte Haskins & Sells, who have audited certain
financial statements of the Company, are independent public accountants
as required by the Act and the rules and regulations of the Commission
promulgated thereunder; the Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S. GAAP;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate actions taken with respect to any
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differences; and (E) the Company has made and kept books, records and
accounts which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets of such entity and provide a
sufficient basis for the preparation of combined financial statements in
accordance with U.S. GAAP; and
(kk) The Company has reviewed its operations and any third
parties with which the Company has a material relationship to evaluate
the extent to which the business or operations of the Company has been
or will be affected by the Year 2000 Problem. As a result of such
review, the Company has no reason to believe, and does not believe, that
the Year 2000 Problem has had or will have Material Adverse Effect or
has resulted or will result in any material loss of interference with
the Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind is not
functioning or will not function, in the case of dates or time periods
occurring after December 31, 1999, at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price per
ADSs of US$__________ (the "ADS Purchase Price"), the number of Firm ADSs set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional ADSs as provided below, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price per ADS set forth in
clause (a) of this Section 2, that portion of the number of Optional ADSs as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
ADSs by a fraction the numerator of which is the maximum number of Optional ADSs
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional ADSs that all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _________ Optional ADSs, at the purchase price per ADS set
forthin the paragraph above, for the sole purpose of covering over allotments in
the sale of the Firm ADSs and other transactions. Any such election to purchase
Optional ADSs shall be made in proportion to the maximum number of Optional ADSs
to be
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sold by the Company as set forth in Schedule I hereto. Any such election to
purchase Optional ADSs may be exercised from time to time only by written notice
from you to the Company, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional ADSs
to be purchased and the date on which such Optional ADSs are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The ADSs to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Goldman, Sachs & Co. may request upon at least forty-eight
hours' notice to the Company prior to a Time of Delivery (as defined
below) (the "Notification Time"), shall be delivered by or on behalf of
the Company to Goldman, Sachs & Co., through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs & Co. at least
forty-eight hours in advance. The Company will cause the certificates
representing the ADSs to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery (as defined below)
with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The Shares underlying the ADSs to be
delivered hereunder shall be delivered to [Name of the Custodian], as
custodian (the "Custodian") for the Depositary against delivery of a
copy of a letter confirming that the Goldman, Sachs & Co. have given
irrevocable instructions to its bank in New York to make the wire
transfer of payment for the ADSs at the Time of Delivery specified in
this subsection (a) of Section 4. It is understood and agreed by the
parties hereto that no delivery or transfer of ADSs to be purchased and
sold hereunder at a Time of Delivery shall be effective until and unless
payment therefor has been made pursuant hereto and each of DTC and the
Company shall have furnished or caused to be furnished to Goldman, Sachs
& Co., on behalf of the Underwriters at such Time of Delivery
certificates and other evidence reasonably satisfactory to Goldman,
Sachs & Co. of the execution in favor of the Underwriters of the
book-entry transfer of ADSs, whether by delivery in India or to the
custodian for DTC. [SETTLEMENT DETAILS TO BE CONFIRMED].
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<PAGE> 14
The time and date of such delivery and payment shall be, with
respect to the Firm ADSs, 9:30 a.m., New York City time, on
............., 2000 or such other time and date as Goldman, Sachs & Co.
and the Company may agree upon in writing, and, with respect to the
Optional ADSs, 9:30 a.m., New York City time, on the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co.
of the Underwriters' election to purchase such Optional ADSs, or such
other time and date as Goldman, Sachs & Co. and the Company may agree
upon in writing. Such time and date for delivery of the Firm ADSs is
herein called the "First Time of Delivery", such time and date for
delivery of the Optional ADSs, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date
for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including
the cross-receipt for the ADSs and any additional documents requested by
the Underwriters pursuant to Section 7(l) hereof, will be delivered at
the offices of Sullivan & Cromwell, 125 Broad Street, New York, NY 10004
(the "Closing Location"), and the Shares will be delivered as specified
in Section (a) above, all at such Time of Delivery. A meeting will be
held at the Closing Location at ____p.m., New York City time, on the New
York Business Day next preceding such Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
"New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order
to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you copies thereof; to file promptly all reports required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date of the Prospectus
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<PAGE> 15
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the ADSs; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or Prospectus, of the suspension
of the qualification of the ADSs for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares and ADSs for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the ADSs, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the ADSs and if at such time any events
shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you
and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
ADSs at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as you may
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<PAGE> 16
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To use its best efforts to file in a timely manner all
reports or other documents required to be filed by it pursuant to
Section 13 or 15(d) of the Exchange Act. In addition, the Company will
submit to the Commission quarterly reports, which will include unaudited
quarterly condensed consolidated financial information, on Form 6-K for
the first three quarters of each fiscal year and file its annual report
on Form 20-F within the time period prescribed under section 13 of the
Exchange Act for the filing by domestic issuers of quarterly reports on
Form 10-Q and annual reports on Form 10-K, respectively;
(e) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company (which need
not be audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
(f) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus (the "Lock-Up Period"), not to offer, sell, contract to sell
or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Equity Shares or ADSs,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Equity Shares
or ADSs or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without prior written
consent; the foregoing restriction is expressly intended to preclude the
Company from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to or result in a sale or
disposition of the ADSs or Equity Shares even if such ADSs or Equity
Shares would be disposed of by a person other than the Company; such
prohibited hedging or other transactions would include without
limitation any short sale or any purchase, sale or grant of any right
(including without limitation any put or call option) with respect to
any of the ADSs or Equity Shares or with respect to any security or
derivative instrument that includes, relates to, or derives any
significant part of its value from such ADSs or Equity Shares (other
than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date hereof);
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<PAGE> 17
(g) To furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (in English) (including a
balance sheet and statements of income, shareholders' equity and cash
flows of the Company certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in
the United States ("U.S. GAAP")), and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the
Registration Statement), to make available to its shareholders
consolidated summary financial information of the Company for such
quarter in reasonable detail and prepared in accordance with U.S. GAAP;
(h) During the time any ADSs remain outstanding, to furnish to
the Depositary, and to use its best efforts to cause the Depositary to
furnish holders of the ADRs evidencing such ADSs, as soon as practicable
after the end of each fiscal year and the end of the first interim
period of each fiscal year, as applicable, the financial statements
referred to in the preceding paragraph (g);
(i) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to
deliver to you (A) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or
any securities exchange on which any class of securities of the Company
is listed; and (B) such additional information concerning the business
and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company are consolidated in
reports furnished to its shareholders generally or to the Commission);
(j) To use the net proceeds received by it from the sale of the
ADSs pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) Prior to each Time of Delivery, to deposit Shares with the
Depositary in accordance with the provisions of the Deposit Agreement
and otherwise to comply with the Deposit Agreement so that ADRs
evidencing ADSs will be executed (and, if applicable, countersigned) and
issued by the Depositary against receipt of such Equity Shares and
delivered to the purchasers at such Time of Delivery;
(l) Not to take, directly or indirectly, any action which is
designed to or which constitutes or which might reasonably be expected
to cause or
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<PAGE> 18
result in stabilization or manipulation of the price of any security of
the Company or facilitate the sale or resale of the Equity Shares and
the ADSs;
(m) To use its best efforts to obtain approval for quotation the
ADSs on the National Association of Securities Dealers Automated
Quotations National Market System ("NASDAQ");
(n) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(o) To file with the Commission such information on Form 20-F as
may be required by Rule 463 under the Act;
(p) To the extent so specified by Goldman, Sachs & Co., to cause
the ADSs representing Firm Shares and Optional Shares, respectively, and
the ADRs evidencing such ADSs, to be issued and delivered at the Time of
Delivery of the Firm Shares and the Time of Delivery of the Optional
Shares, respectively, and at each such Time of Delivery, to cause the
Depositary to furnish or cause to be furbished to you as of such Time of
Delivery certificates satisfactory to you evidencing the deposit with it
or its custodian of the Shares being so deposited against issuance of
the ADRs evidencing such ADSs to be delivered at such Time of Delivery,
and the execution, countersignature (if applicable), issuance and
delivery of the ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(q) Between the date hereof and the Time of Delivery of the
Optional Shares, or, if the Underwriters do not elect to purchase any
Optional Shares pursuant to Section 2 hereunder, the Time of Delivery of
the Firm Shares (both dates inclusive), not to, without prior
consultation with Goldman, Sachs & Co., issue any announcement in the
Republic of India or elsewhere which could be material in the context of
the distribution of the ADSs and the Shares;
(r) During the Lock-up Period, not to make any public
announcement contradicting any of the information contained in the
Prospectus except after consultation with you;
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<PAGE> 19
(s) For so long as the Shares or the ADSs are outstanding, the
Company agrees to file with the Commission, and any other governmental
agency, authority or instrumentality in the United States, such relevant
reports, documents, agreements and other information which may from time
to time be required by applicable law or regulation to be so filed
because the Shares or the ADSs are outstanding; and
(t) The Company agrees to indemnify and hold the Underwriters
harmless against any documentary, stamp or similar issuance or transfer
taxes, duties or fees, including any interest and penalties, which are
or may be required to be paid in connection with the creation,
allotment, issuance, offer and distribution of the Shares or the ADSs
and the execution and delivery of this Agreement and the Deposit
Agreement.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares and the ADSs under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, the ADSs Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Deposit Agreement, any Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares and the ADSs; (iii) all
expenses in connection with the qualification of the Shares and the ADSs for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any Blue Sky survey;
(iv) all fees and expenses in connection with listing the ADSs on NASDAQ; (v)
the filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the ADSs;
(vi) all expenses and taxes arising as a result of (A) the deposit of the Shares
with the Depositary and the issuance and delivery of the ADRs evidencing ADSs in
exchange therefor by the Depositary to the underwritiers, (B) the sale and
delivery of the ADSs by the Company to or for the account of the Underwriters
and (C) the sale and delivery of the ADSs by the Underwriters to the initial
purchasers thereof in the manner contemplated under this Agreement, including,
in any such case, any India income, capital gains, withholding, transfer, stamp
or other tax asserted against an Underwriter by reason of the purchase and sale
of ADSs pursuant to this Agreement; (vii) the fees and expenses (including fees
and disbursements of counsel), if any, of the Depositary and any custodian
appointed under the Deposit Agreement, other than the fees and
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<PAGE> 20
expenses to be paid by holders of ADRs (other than the Underwriters, in
connection with the initial purchase of ADSs); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 14 hereof); (ix) the cost of
preparing ADRs; (x) the cost and charges of any transfer agent or registrar;
(xi) out-of-pocket expenses relating to the roadshows for the offering of the
ADSs, in an amount to be agreed upon separately between the Company and Goldman,
Sachs & Co.; (xii) all costs of advertising and legal notices in connection with
the offering of the ADSs; (xiii) the fees and expenses of external service
providers employed in connection with the offering of the ADSs, in an amount to
be agreed upon separately between the Company and Goldman, Sachs & Co.; and
(xiv) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes (other
than any imposed by the Republic of India or any political subdivision or taxing
authority thereof or therein) on resale of any of the ADSs by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Sullivan & Cromwell, U.S. counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such
Time of Delivery, with respect to such matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
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<PAGE> 21
(c) Amarchand & Mangaldes & Suresh A. Shroff & Co., Indian
counsel for the Underwriters, shall have furnished to you such written
opinion or opinions, dated such Time of Delivery, with respect to such
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(d) Wilson Sonsini Goodrich & Rosati, U.S. counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached hereto as Annex III (c) hereto), dated such
Time of Delivery in form and substance satisfactory to you;
(e) Nishith Desai Associates, Mumbai, India, Indian counsel for
the Company, shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly formed and is validly
existing as a company limited by shares in good standing under
the laws of the Republic of India, with legal rights, power and
authority (corporate and other) to own, use, lease and operate
its properties and conduct its business as described in the
Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall state
that they believe that both you and they are justified in
relying upon such opinions and certificates.
(iii) The Company has corporate power to enter into and
to perform its obligations under this Agreement and the Deposit
Agreement and has taken all necessary corporate action to
authorize the execution, delivery and performance of each of
such Agreements.
(iv) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Shares being delivered at
such Time of Delivery) have been duly and validly authorized and
issued and are fully paid, non-assessable and are at the time of
issue free and clear
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of all liens, encumbrances, equities or claims; the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to acquire the ADSs or
Shares to be purchased from the Company which have not been
complied with; the Shares may be freely deposited by the Company
with the Depositary against issuance of ADRs evidencing ADSs;
the ADSs and Shares are freely transferable by the Company to or
for the account of the several Underwriters in the manner
contemplated herein and to the initial purchasers thereof; there
are no restrictions on subsequent transfers of the ADSs and
Shares; and the ADSs and Shares conform to the description of
the ADSs and the Equity Shares, respectively, contained in the
Prospectus;
(v) All Governmental Authorizations required for the
ADSs and the Shares to be duly and validly authorized and issued
have been obtained or made and are in full force and effect;
(vi) This Agreement has been duly authorized, executed
and delivered by the Company;
(vii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles;
(viii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party
or of which any property of the Company is the subject which, if
determined adversely to the Company, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or
results of operations of the Company; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, the Company has good and marketable title to
all real property and good and marketable title to all personal
property it owns, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere
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<PAGE> 23
with the use made and proposed to be made of such property by
the Company; and any real property and buildings held under
lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company;
(x) To the best of such counsel's knowledge after
reasonable inquiry, the Company has all necessary licenses,
consents, authorizations, approvals, orders certificates and
permits of and from, and have made all declarations and filings
with all Governmental Agencies in the Republic of India, to own,
lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus and such
licenses, consents, authorizations, approvals, orders,
certificates or permits contain no materially burdensome
restrictions or conditions not described in the Registration
Statement or the Prospectus. Except as described in the
Prospectus, the Company has no reason to believe that any such
Governmental Agency is considering modifying, suspending or
revoking any such licenses, consents, authorizations, approvals,
orders, certificates or permits and each of the company and the
Company is in compliance with the provisions of all such
licenses, consents, authorizations, approvals, orders,
certificates or permits in all material respects;
(xi) To the best of such counsel's knowledge after
reasonable inquiry, since the date of the latest audited
financial statements included in the Prospectus, the Company has
not (i) entered into or assumed any contract, (ii) incurred or
agreed to incur any liability (including any contingent
liability) or other obligation, (iii) acquired or disposed of or
agreed to acquire or dispose of any business or any other asset
or (iv) assumed or acquired or agreed to assume or acquire any
liabilities (including contingent liabilities) that would be
material to the Company, and that are not otherwise described in
the Prospectus;
(xii) The issue and sale of the Shares and ADSs being
delivered at such Time of Delivery, the compliance by the
Company with all of the provisions of this Agreement and the
deposit of the Shares being deposited by the Company with the
Depositary against issuance of the ADSs evidencing the ADRs to
be delivered at such Time of Delivery by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the Deposit Agreement and the consummation of the
transactions herein and
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<PAGE> 24
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will such actions result in any
violation of the provisions of the Memorandum of Association or
the Articles of Association of the Company or any India statute
or any order, rule or regulation known to such counsel of any
India Governmental Agency having jurisdiction over the Company;
(xiii) No Governmental Authorization of or with any
Governmental Agency is required in the Republic of India for the
issue and sale of the Shares and ADSs by the Company, the
deposit of the Shares being deposited by the Company with the
Depositary against issuance of the ADSs evidencing the ADRs to
be delivered at such Time of Delivery by the Company or the
consummation by the Company of the transactions contemplated by
this Agreement and the Deposit Agreement, except such as have
been duly obtained and are in full force and effect;
(xiv) The statements in the Prospectus under the
captions "Risk Factors -- Risks Relating to Our ADSs",
"Management's Discussion and Analysis of Financial Condition and
Results of Operations, "Business -- Enforceability of Certain
Civil Liabilities", "Management -- Employee Share Option Plan",
"Description of Share Capital" and "Tax Considerations -- India
Tax Considerations", to the extent such statements relate to
matters of Indian law or regulation or to the provisions of
documents therein described, are true and accurate in all
material respects, and nothing has been omitted from such
statements which would make the same misleading in any material
respect;
(xv) No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes
are payable by or on behalf of the Underwriters to India or any
political subdivision or taxing authority thereof or therein in
connection with (A) the execution and delivery of this
Agreement, (B) the issuance of the ADSs, (C) the sale and
delivery by the Company of the ADSs to or for the respective
accounts of the Underwriters or (D) the sale and delivery by the
Underwriters of the ADSs to the initial purchasers thereof in
the manner contemplated herein.
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(xvi) The Registration Statement and the filing of the
Registration Statement with the Commission have been duly
authorized by and on behalf of the Company; and the Registration
Statement has been duly executed pursuant to such authorization
by and on behalf of the Company;
(xvii) The Company's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by
the courts of the Republic of India; the Company can sue and be
sued in its own name under the laws of the Republic of India;
the irrevocable submission of the Company to the exclusive
jurisdiction of a New York Court, the waiver by the Company of
any objection to the venue of a proceeding of a New York Court
and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the
State of New York are legal, valid and binding; service of
process effected in the manner set forth in Section 14 hereof
will be effective, insofar as the law of the Republic of India
is concerned, to confer valid personal jurisdiction over the
Company; and a judgment obtained in a New York Court arising out
of or in relation to the obligations of the Company under this
Agreement would be enforceable against the Company by suit upon
the judgment in the courts of the Republic of India as mentioned
in the Prospectus under the caption "Enforcement of Civil
Liabilities" and not by proceedings in execution.
(xviii)The indemnification and contribution provisions
set forth in Section 8 hereof do not contravene the public
policy or laws of the Republic of India;
(xiv) All dividends and other distributions declared and
payable on the shares of capital stock of the Company including
any such dividends or distributions to be paid to the
Depositary; may under the current laws and regulations of the
Republic of India, be paid in Indian rupees and may be converted
into foreign currency that may be freely transferred out of the
Republic of India, and all such dividends and other
distributions will not be subject to withholding or other taxes
under the laws and regulations of the Republic of India and are
otherwise free and clear of any other tax, withholding or
deduction in the Republic of India, except such as are described
in the Prospectus, and without the necessity of obtaining any
Governmental Authorization in the Republic of India;
(xx) To the best of such counsel's knowledge, the
Company is not in violation of its Memorandum of Association or
its Articles of
25
<PAGE> 26
Association or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound;
(xxi) This Agreement is in proper form to be legal and
valid under the laws of the Republic of India, and to ensure the
legality, validity, enforceability or admissibility into
evidence in the Republic of India of this Agreement, it is not
necessary that this Agreement or any other documents be filed or
recorded with any court or other authority in the Republic of
India or that any India stamp or similar tax be paid on or in
respect of this Agreement or any other document to be furnished
hereunder;
(xxii) Such counsel have no reason to believe that the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
contained, in the case of registration statement which became
effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading.
In rendering such opinion, Nishith Desai Associates, Mumbai,
India, may rely, as to matters governed by United States federal and New
York law, upon the respective opinions of Wilson Sonsini Goodrich &
Rosati, delivered pursuant to Section 7(d);
(f) Counsel of the Depositary shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a valid
and legally binding obligation of the Depositary, enforceable in
accordance with its terms, subject as to enforcement to
bankruptcy, insolvency,
26
<PAGE> 27
reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ii) Upon issuance by the Depositary of ADRs evidencing
ADSs against the deposit of Shares in respect thereof in
accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued;
(iii) The ADRs issued under and in accordance with the
provision of the Deposit Agreement to evidence ADSs will entitle
the holders thereof to the rights specified therein and in the
Deposit Agreement, assuming that (A) the Shares represented by
the ADSs which are in turn evidenced by the ADRs have been duly
authorized and validly issued and are fully paid and
nonassessable and that any preemptive rights with respect to the
Shares have been validly waived or exercised and (B) such Shares
have been duly deposited with Citibank, N.A., as Custodian, in
each case under and in accordance with all applicable laws and
regulations; and
(iv) The ADS Registration Statement and any amendments
thereof or supplements thereto, as of their respective effective
dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder;
(g) On the date of the preliminary Prospectus, the date of the
final Prospectus at a time prior to the execution of this Agreement, at
9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery,
Deloitte Haskins & Sells shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you (the executed copy of the letter delivered
on the date of the preliminary Prospectus, is attached as Annex I(a)
hereto and a draft of the form of letter to be delivered on the date of
the final Prospectus, the effective date of any post-effective amendment
to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(h) (i) The Company shall not have sustained since the date of
the latest audited financial statements included in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any
27
<PAGE> 28
change in the capital stock, short-term debt or long-term debt of the
Company or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares and ADSs being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
in securities generally on NASDAQ; (ii) a suspension or material
limitation in trading in the ADSs on NASDAQ; (iii) a general moratorium
on commercial banking activities in New York, London or the Republic of
India declared by the relevant authorities; (iv) a change or development
involving a prospective change in taxation affecting the Company, the
Shares or the ADSs or the transfer thereof or the imposition of or
change in existing exchange controls by the United States or India; or
(v) the outbreak or escalation of hostilities involving the United
States, the United Kingdom or the Republic of India or the declaration
by the United States, the United Kingdom or the Republic of India of a
national emergency or war, if the effect of any such event specified in
this clause (v) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the ADSs being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus or (vi) the
occurrence of any change in the existing financial, political or
economic conditions in the United States, the United Kingdom, the
Republic of India or elsewhere which, in the judgment of the
Representatives would materially and adversely affect the financial
markets or the market for the ADSs and other equity securities;
(j) The ADSs to be sold by the Company at such Time of Delivery
shall have been duly approved for quotation on NASDAQ, subject to
issuance;
(k) The Depositary shall have furnished or caused to be
furnished to you at such Time of Delivery certificates satisfactory to
you evidencing the deposit with it of the Shares being so deposited
against issuance of ADRs evidencing the ADSs to be delivered by the
Company at such Time of Delivery, and the execution, countersignature
(if applicable), issuance and delivery of ADRs evidencing such ADSs
pursuant to the Deposit Agreement;
28
<PAGE> 29
(l) Each shareholder who beneficially owns more than 1% of the
shares of the Company's capital stock and each executive officer and
director of the Company shall have entered into an agreement (each the
"Lock-Up Agreement") substantially in the form attached as Annex II
hereto whereby during the Lock-Up Period, such shareholder, executive
officer or director shall not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the ADSs or Equity Shares, including
but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Equity Shares
or ADSs, or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior
written consent;
(m) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(n) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as
to such other matters as you may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (h) of this Section, and as to
such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement
or the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company shall
not be liable in any such
29
<PAGE> 30
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the ADS Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the ADS Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the ADS Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the
30
<PAGE> 31
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Shares and the ADSs. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares and
the ADSs purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares and
the ADSs purchased under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other
31
<PAGE> 32
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares and the ADSs underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to the respective
affiliates and agents of each Underwriter and to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares and the ADSs which it has agreed to purchase hereunder at a
Time of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares and the ADSs on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares and the
ADSs, then the Company shall be entitled to a further period of
thirty-six hours within which
32
<PAGE> 33
to procure another party or other parties satisfactory to you to
purchase such Shares and the ADSs on such terms. In the event that,
within the respective prescribed periods, you notify the Company that
you have so arranged for the purchase of such Shares and the ADSs, or
the Company notify you that they have so arranged for the purchase of
such Shares and the ADSs, you or the Company shall have the right to
postpone such Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this
Agreement with respect to such Shares and ADSs.
(b) If, after giving effect to any arrangements for the purchase
of the Shares and ADSs of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares and ADSs which remains unpurchased does not exceed
one-eleventh of the aggregate number of all of the Shares to be
purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number
of Shares and ADSs which such Underwriter agreed to purchase hereunder
at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares and ADSs which such Underwriter agreed to purchase
hereunder) of the Shares and ADSs of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares and ADSs of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares and ADSs which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares and ADSs to be
purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares and ADSs of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time
of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares and the Optional ADSs) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements
33
<PAGE> 34
in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, or any
controlling person, and shall survive delivery of and payment for the ADSs.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason any Shares or
ADSs are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares and ADSs not so delivered, but the
Company shall then be under no further liability to any Underwriter in respect
of the Shares and ADSs not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Goldman, Sachs &
Co., 32 Old Slip, 21st Floor, New York, New York 10005, Attention: Registration
Department; and if to the Company shall be delivered or sent by registered mail,
overnight courier or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Chief Financial Officer (with a
copy to: Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Polo Alto, CA
94304, Facsimile (650) 493-6811, Attention: Michael J. Davaher, Esq.); provided,
however, that any notice to an Underwriter pursuant to Section 8 (c) hereof
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
34
<PAGE> 35
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the respective affiliates and agents of each
Underwriter, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares and ADSs from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation as its authorized
agent (the "Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
at process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company, as the case may be, will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars.
35
<PAGE> 36
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
36
<PAGE> 37
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives plus
one for each counsel counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Rediff.com India Limited
By: __________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
Robert Fleming Inc.
By: __________________________.
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
37
<PAGE> 38
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
ADSS TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM ADSS MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
<S> <C> <C>
Goldman, Sachs & Co. ............................
Credit Suisse First Boston Corporation...........
Robert Fleming Inc...............................
|X|
--------------- ------------------
Total ...................................
=============== ==================
</TABLE>
38
<PAGE> 39
ANNEX I(a)
[LETTERHEAD OF DELOITTE HASKINE & SELLS]
May , 2000.
Goldman Sachs (Asia) LLC.
Credit Suisse First Boston Corporation.
Robert Fleming Inc.
(as representatives of the underwriters named in the underwriting agreement)
c/o Goldman Sachs (Asia) LLC,
68/F, Cheung Kong Center,
2, Queen's Road Central,
Hong Kong,
People's Republic of China.
Dear Sirs:
We have audited the Balance Sheets of Rediff.com India Limited ("the Company")
as of March 31, 1999 and 2000, and the related Statements of Operations, Cash
Flows and Shareholders' Equity (Deficit) for each of the years ended March 31,
1998, 1999 and 2000, all included in the registration statement (No. 333-o )
("registration statement") on Form F-1, filed by the Company under the
Securities Act of 1933 ("the Act"), as amended on May 19, 2000. Our report dated
May 3, 2000 with respect thereto is also included in that registration
statement.
In connection with the registration statement--
1. We are independent Accountants with respect to the Company within the
meaning of the Act and the applicable rules and regulations thereunder
adopted by the SEC.
2. In our opinion, the financial statements audited by us and included in
the registration statement comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
rules and regulations adopted by the SEC.
3. We have not audited any financial statements of the Company as of any
date or for any period subsequent to March 31, 2000. Although we have
conducted an audit for the years ended March 31, 1998, 1999 and 2000,
<PAGE> 40
the purpose (and therefore the scope) of the audits was to enable us to
express our opinion on the financial statements as of March 31, 1999 and
2000, and for the years ended, March 31, 1998, 1999, and 2000.
Therefore, we are unable to and do not express any opinion on the
statement of financial position, results of operations, or cash flows as
of any date for any period subsequent to March 31, 2000.
4. For the purposes of this letter, we have read minutes of meetings of the
shareholders and the board of directors of the Company held during the
years ended March 31, 1998, 1999 and 2000 and for the period from April
1, 2000 to May , 2000. [Date five days before the issuance date of the
letter], as set forth in the minutes books maintained by the Company.
Officials of the Company having advised us that the minutes of all such
meetings through that date were set forth therein. Our work did not
extend to the period from May ,2000 [Date five days before the issuance
date of the letter], to May , 2000 [Issuance date of letter], both days
inclusive.
5. With respect to the period from April 1, 2000, to April 30, 2000 [being
the subsequent period up to which the Company will be required to
prepare the financial statements]:
(1) We have read the unaudited financial statements of the Company
for each of the periods from April 1 to 30, 1999 and 2000
furnished to us by the Company; officials of the Company have
advised us that no such financial statements as of any date or
for any period subsequent to April 30, 2000, were available.
(2) We have inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited financial statements referred to in (i) above are
stated on a basis substantially consistent with that of the
audited financial statements included in the registration
statement.
The foregoing procedures in i) and ii) above do not constitute an audit
conducted in accordance with generally accepted auditing standards.
Also, they would not necessarily reveal matters of significance with
respect to the comments in the following paragraph. Accordingly, we make
no representations regarding the sufficiency of the foregoing procedures
for your purposes.
6. Nothing came to our attention as a result of the foregoing procedures,
in
40
<PAGE> 41
paragraph 5 above, however, that caused us to believe that:
(i) As of April 30, 2000, there have been any changes in the capital
stock or any creation or increase of long-term debt of the
Company, or any decreases in the net current assets or
stockholders' equity or other items specified by Representatives
of Goldman, Sachs & Co., Credit Suisse First Boston or Robert
Fleming Inc. ("the Representatives") or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the balance sheet as at April 30, 2000
included in the Registration Statement, except in each case for
changes, increases or decreases which the Registration Statement
discloses have occurred or may occur or which are described in
this letter.
(ii) For the period from March 31, 2000 to April 30, 2000 there were
any decreases, as compared to the corresponding period in the
preceding year in net revenues or increase in operating loss or
the total or per share amounts of net loss, or other items
specified by the Representatives, in each case, except in each
case for decreases or increases which the Registration Statement
discloses that have occurred or may occur or which are described
in this letter.
7. As mentioned in paragraph 4 ii) above, officials of the Company have
advised us that no financial statements as of any date or for period
subsequent to April 30, 2000, are available; accordingly, the procedures
carried out by us with respect to changes in financial statement items
after April 30, 2000, have, of necessity, been even more limited than
those with respect to period the procedures carried out by us for the
period from April 1, 2000, to April 30, 2000 referred to in paragraph 4.
We have inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether (a) at [May
, 2000]Date: five days before issuance date of the letter], there was
any change in the capital stock , increase in long-term debt or any
decreases in net current assets or stockholders' equity of the Company
as compared with amounts shown on the March 31, 2000, balance sheet
included in the registration statement or (b) for the period from April
1, to [May ,2000] [Date five days before the issuance date of the
letter], whether there were any decreases in net revenues or increase in
operating loss or total or per-share amounts of net loss or any
increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives.
On the
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<PAGE> 42
basis of these inquiries and our reading of the minutes as described in
paragraph 4 above, nothing came to our attention that caused us to
believe that there was any such change, increases, or decrease, except
in all instances for changes, increases, or decreases that the
registration statement discloses have occurred or may occur.
8. In addition to the audit referred to in our report included in the
Registration Statement and the limited procedures, inspection of minute
books, inquiries and other procedures referred to above, we have carried
out certain specified procedures with respect to certain amounts,
percentages and financial information as specified by the
Representatives as set out in Appendix "A". These procedures do not
constitute an audit conducted in accordance with auditing standards
generally accepted in the United States of America. Also, they would not
necessarily reveal matters of significance with respect to the comments
in the foregoing paragraph. Accordingly, we make no representations
regarding the sufficiency of the foregoing procedures for your purposes.
9. This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their
investigation of the affairs of the Company in connection with the
offering of the securities covered by the registration statement, and it
is not to be used, circulated, quoted, or otherwise referred to within
or without the underwriting group for any purpose, including but not
limited to the registration, purchase, or sale of securities, nor is it
to be filed with or referred to in whole or in part in the registration
statement or any other document, except that reference may be made to it
in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the registration
statement.
Yours truly,
Deloitte Haskins & Sells
42
<PAGE> 43
ANNEX I(b)
FORM OF BRING-DOWN COMFORT LETTER
[Letterhead of Deloitte Haskins & Sells]
_________ , 2000 [Closing Date]
The Board of Directors
Rediff.com India Limited
Mahalaxmi Engineering Estate
1st Floor, L.J. First Cross Road
Mahim (West), Mumbai 400 016
India
Goldman, Sachs (Asia) L.L.C.
Credit Suisse First Boston
Robert Fleming Inc.
As Representatives of the several Underwriters
c/o Goldman Sachs (Asia) L.L.C.
68/F, Cheung Kong Center
2 Queen's Road Central
Hong Kong
Dear Sirs:
We refer to our letter of ______ , 2000 [Pricing Date] relating to the
Registration Statement (No. 333-o) of Rediff.com India Limited (the "Company").
We reaffirm as of the date hereof (and as though made on the date hereof) all
statements made in that letter, except that for purposes of this letter:
1. The Registration Statement to which this letter relates is the
Registration Statement in the form in which it became effective.
2. The reading of minutes described in paragraph 4 of that letter has been
carried out through ________ , 2000.
3. The procedures and inquiries covered in paragraph 4 of that letter were
carried out to _______ , 2000 (our work did not extend to the period
from _______ , 2000 to ________ , 2000 [Closing Date], inclusive).
<PAGE> 44
This letter is solely for the information of the addresses and to assist
the underwriters in conducting and documenting their investigation of
the affairs of the Company in connection with the offering of the
securities covered by the Registration Statement, and is not to be used,
circulated, quoted or otherwise referred to within or without the
underwriting group for any other purpose, including, but not limited to,
the registration, purchase, or sale of securities, nor is it to be filed
with or referred to in whole or in part in the Registration Statement or
any other document, except that reference may be made to it in the
underwriting agreement or any list of closing documents pertaining to
the offering of the securities covered by the Registration Statement.
Very truly yours,
2
<PAGE> 45
ANNEX II
FORM OF LOCK-UP AGREEMENT
REDIFF.COM INDIA LIMITED
LOCK-UP AGREEMENT
__________, 2000
Goldman, Sachs & Co.,
Credit Suisse First Boston Corporation,
Jardine Fleming Securities Limited,
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Re: Rediff.com India Limited - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as Representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Rediff.com India Limited, a limited liability company
formed under the laws of the Republic of India (the "Company"), providing for a
public offering of the American Depositary Shares ("ADS") representing one-half
of one equity share (par value Rs. 10 per share) (the "Equity Shares") of the
Company pursuant to a Registration Statement on Form F-1 filed with the
Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and sell
the ADSs, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the final Prospectus covering the public
offering of the ADSs and continuing to and including the date 180 days after the
date of such final
<PAGE> 46
Prospectus, the undersigned will not offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose of any
Equity Shares or ADSs of the Company, or any options or warrants to purchase any
Equity Shares or ADSs of the Company, or any securities convertible into,
exchangeable for or that represent the right to receive Equity Shares or ADSs of
the Company, whether now owned or hereinafter acquired, owned directly by the
undersigned (including holding as a custodian) or with respect to which the
undersigned has beneficial ownership within the rules and regulations of the SEC
(collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the Undersigned's Shares or with respect to any security
that includes, relates to, or derives any significant part of its value from
such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, or (iii) with the prior written consent of Goldman, Sachs & Co. on behalf
of the Underwriters. For purposes of this Lock-Up Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. In addition, notwithstanding the foregoing, if the undersigned is
a corporation, the corporation may transfer the capital stock of the Company to
any wholly-owned subsidiary of such corporation; provided, however, that in any
such case, it shall be a condition to the transfer that the transferee execute
an agreement stating that the transferee is receiving and holding such capital
stock subject to the provisions of this Agreement and there shall be no further
transfer of such capital stock except in accordance with this Agreement, and
provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clause (i), (ii),
or (iii) above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Shares except in compliance
with the foregoing restrictions.
2
<PAGE> 47
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned
3
<PAGE> 48
further understands that this Lock-Up Agreement is irrevocable and shall be
binding upon the undersigned's heirs, legal Representatives, successors, and
assigns.
Very truly yours,
-------------------------------------
Exact Name of Shareholder,
Director or Officer
-------------------------------------
Authorized Signature
-------------------------------------
Title
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