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MTHM Draft
September 12, 2000
Wipro Limited
2,750,000 American Depositary Shares
representing 2,750,000 Equity Shares
par value Rs. 2 per share
UNDERWRITING AGREEMENT
[___________], 2000
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[___________], 2000
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston (Singapore) Limited
Banc of America Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Wipro Limited, a public company with limited liability duly organized
and existing under the laws of the Republic of India (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") 2,750,000 American Depositary Shares (the "Firm ADSs"). The
Company also proposes to issue and sell to the several Underwriters not more
than an additional [812,500] American Depositary Shares (the "Additional ADSs")
if and to the extent that you, as managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of common stock granted to the Underwriters in Section 2 hereof. The
Firm ADSs and the Additional ADSs are hereinafter collectively referred to as
the "ADSs." Each ADS will represent of one equity share, par value Rs. 2 per
share (the "Shares"), of the Company.
The ADSs will be evidenced by American Depositary Receipts ("ADRs") to
be issued pursuant to the Deposit Agreement, dated as of [___], 2000, among the
Company, Morgan Guaranty Trust Company of New York, as Depositary (the
"Depositary"), and all holders and beneficial owners from time to time of the
ADSs (the "Deposit Agreement").
The Firm ADSs and the Additional ADSs, if any, and the Shares
represented thereby are hereinafter called the "Offered Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
ADSs. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the prospectus in the form first
used to confirm sales of ADSs is hereinafter referred to as the "Prospectus." If
the Company has filed an abbreviated registration statement to register ADSs
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be
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deemed to include such Rule 462 Registration Statement. The Company and the
Depositary have also prepared and filed with the Commission in accordance with
the provisions of the Securities Act a registration statement on Form F-6 (File
No. 333-[___]) relating to the ADSs and ADRs. Such registration statement, as
amended at the time it becomes effective, is hereinafter referred to as the "ADR
Registration Statement."
Morgan Stanley & Co. Incorporated ("Morgan Stanley") has agreed to
reserve a portion of the ADSs to be purchased by it under this Agreement for
sale to certain of the Company's top clients and to friends and relatives of
certain of its senior employees (collectively, "Participants"), as set forth in
the Prospectus under the heading "Underwriting" (the "Directed Share Program").
The ADSs to be sold by Morgan Stanley and its affiliates pursuant to the
Directed Share Program are referred to hereinafter as the "Directed Shares." Any
Directed Shares not confirmed for purchase by any Participants by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters as set forth in the Prospectus.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement and the ADR Registration Statement have
become effective; no stop order suspending the effectiveness of either the
Registration Statement or the ADR Registration Statement are in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b)(i) Each of the Registration Statement and the ADR Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement, the ADR Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder as well as the rules,
regulations and other requirements of the Ministry of Finance of India (the
"MOF"), the Reserve Bank of India (the "RBI"), the Department of Company
Affairs of India (the "DCA"), the Company Law Board (the "CLB"), the
Foreign Investment Promotion Board (the "FIPB") and the Securities Exchange
Board of India ("SEBI"), as applicable, and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, the ADR Registration Statement or
the Prospectus
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based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Deposit Agreement has been duly authorized, and when executed
and delivered by the Company will constitute a valid and legally binding
agreement of the Company, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; upon issuance by the
Depositary of ADRs evidencing ADSs against the deposit of the 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.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
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(h) The Shares outstanding prior to the issuance of the Shares to be
issued in connection with the offering and sale of the ADSs have been duly
authorized and are validly issued, fully paid and nonassessable; the Shares
to be issued in connection with the offering and sale of the ADSs have been
duly authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, will not be subject to any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company and will conform in all
material respects to the description of the Shares contained in the
Prospectus. The Shares may be freely deposited with the Depositary against
issuance of ADRs evidencing the ADSs, although there are restrictions on
the future deposits of Shares which are fully and accurately disclosed in
the Prospectus. The ADSs are freely transferable by the Company to the
Underwriters in the manner contemplated in this Agreement. Upon deposit of
the underlying Shares with the custodian named in the Deposit Agreement
pursuant to the Deposit Agreement in accordance with the terms thereof, all
right, title and interest in such Shares, free and clear of any security
interest, mortgage, pledge, claim, lien or other encumbrance (each, a
"Lien"), will be transferred to the Depositary on behalf of the
Underwriters. Upon issuance by the Depositary of the ADRs evidencing the
ADSs against deposit of the underlying Shares in accordance with the
provisions of the Deposit Agreement, such ADRs will be duly and validly
issued and will entitle the holders thereof to the rights specified in the
ADRs and the Deposit Agreement. There are no restrictions on the transfer
of such Shares except as required by (a) restriction on ownership or
transfer in India, or to, or for the account or benefit of, residents in
India described in the Prospectus and (b) the Deposit Agreement, all as
described in the Prospectus. Immediately following the offering and sale of
the ADSs pursuant to this Agreement, the ownership of the Company will be
as set forth in the Prospectus under "Principal Shareholders."
(i) Stamp duty is payable in India by the Company in connection with the
issuance of the Shares in the name of the Depositary; however, no stamp or
other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable in India or any political
subdivision or taxing authority thereof or therein in connection with (A)
the deposit with the Depositary of the Shares by the Company against the
issuance of the ADRs evidencing ADSs, (B) the sale and delivery of the ADSs
to or for the respective accounts of the Underwriters or their designees in
accordance herewith, (C) the sale and delivery outside of India by the
Underwriters or their designees of the ADSs representing the Shares to the
initial purchasers thereof, or (D) except as set forth in the Prospectus
under "Taxation--Indian Taxation", the consummation of any other
transaction contemplated in this Agreement or the Deposit Agreement in
connection with the sale and delivery of the ADSs, except that stamp duty
may be payable on this Agreement or the Deposit Agreement if presented in
India for enforcement.
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(j) Except as described in the Part II of the Registration Statement,
the Company has not sold or issued any Shares during the six-month period
preceding the date of the Registration Statement, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act.
(k) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement and the Deposit
Agreement will not contravene any provision of applicable law (including
any law or regulation of the Republic of India) or the memorandum or
articles of association of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary.
(l) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Company of its obligations under the Deposit Agreement and this
Agreement, the deposit of the Shares with the Depositary, or the issuance
and sale of ADRs evidencing the ADSs representing the Shares, except for
(i) registration of the Shares and ADRs under the Securities Act, and any
filings required under Rule 424 of the Securities Act, (ii) requisite
approval of the National Association of Securities Dealers, Inc. ("NASD"),
(iii) the approval of the FIPB and notification to and confirmation by the
MOF, the RBI and the DCA as described under "Government of India Approvals"
in the Prospectus and (iv) any governmental authorizations as may be
required under state securities or Blue Sky laws or any laws of
jurisdictions outside India and the United States in connection with the
purchase and distribution of the ADSs by or for the account of the
Underwriters.
(m) No governmental approvals are currently required in the Republic of
India in order for the Company to pay dividends or other distributions
declared by the Company to holders of Shares, including the Depositary, or
for the conversion by the Depositary of any dividends paid in rupees to
U.S. dollars or the repatriation thereof out of the Republic of India and
no other withholding or other taxes, levies, imposts or charges under the
laws and regulations of the Republic of India will be imposed in connection
with the declaration and payment by the Company of dividends and other
distributions in respect of Shares (including, without limitation, those
represented by ADRs) to persons not resident in India.
(n) This Agreement, the Deposit Agreement and the ADSs representing the
Shares to be deposited by the Company are in proper legal form under the
laws of India for the enforcement thereof against the Company under the
laws of India; and to ensure the legality, validity, enforceability and
admissibility into evidence in India of each of this Agreement, the Deposit
Agreement, the ADSs or any other such document, it is not necessary that
this Agreement, the Deposit Agreement, the ADSs or any other such document
be filed or recorded with any court or other authority in India or that any
stamp or similar tax be paid in India or in respect of this Agreement, the
Deposit Agreement, the ADSs or any other such document, except that (i)
stamp duty may be payable on this Agreement or the Deposit Agreement if
presented in India for enforcement and (ii) stamp duty is payable in
connection with the issuance of the Shares in the name of the Depositary.
(o) All amounts payable by the Company under this Agreement, the ADRs,
the ADSs or the underlying Shares shall be made free and clear of and
without deduction for or on account of any taxes imposed, assessed or
levied by India or any authority thereof or therein nor are any taxes
imposed in India on, or by virtue of the execution or delivery of, such
documents.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(q) The Company and each of its subsidiaries has obtained all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(r) The Company and its subsidiaries have filed all necessary Indian
federal, state and foreign income and franchise tax returns (including,
without limitation, those required by United States federal, state and
local authorities) or have properly requested extensions thereof and have
paid all taxes required to be paid by any of them and, if due and payable,
any related or similar assessment, fine or penalty levied against any of
them except as may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and reserves
in its financial statements in respect of all Indian federal, state and
foreign income and franchise taxes (including, without limitation, those
required by United States federal, state and local authorities) for all
periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
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(s) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and that are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(t) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(u) The industry, statistical and market-related data included in the
Prospectus and the Registration Statement, as of its date, to the best
knowledge of the Company, are true and accurate in all material respects
and are based on or derived from sources that the Company reasonably
believes to be reliable and accurate.
(v) Except as disclosed in the Prospectus, no relationship, direct or
indirect, exists between or among any of the Company or its subsidiaries on
the one hand, and the directors, officers, stockholders, customers or
suppliers of any of the Company or its subsidiaries on the other hand, that
is required by the Securities Act and rules and regulations thereunder to
be described in the Prospectus.
(w) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the
ordinary course of business, (ii) the Company has not purchased any of its
outstanding share capital, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock and (iii) there
has not been any material change in the share capital, short-term debt or
long-term debt of the Company and its subsidiaries, except in each case as
described in the Prospectus.
(x) The form of certificate for the Shares conforms to the requirements
of Indian law, the charter documents of the Company, the Indian Exchanges
(as defined below) and the description thereof contained in the Prospectus,
and the ADSs and the ADRs conform to the requirements of the Deposit
Agreement and the New York Stock Exchange.
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(y) It is not necessary in order to enable any party to enforce any
of its rights under this Agreement or in order to enable any owner of
ADSs to enforce any of its rights that all or any of such parties or
owners of ADSs be licensed, qualified or entitled to do business in
India. None of the Underwriters is or will be deemed to be resident,
domiciled, carrying on business or subject to taxation in India by
reason of the ownership of ADSs or the entry into, performance and/or
enforcement of this Agreement and the transactions contemplated hereby.
(z) The Company is subject to civil and commercial law with
respect to its obligations under this Agreement, the Deposit Agreement
and the ADRs. The execution and delivery by the Company and the
performance by the Company of its obligations hereunder and thereunder
constitute private and commercial acts rather than governmental or
public acts and neither the Company, any subsidiary of the Company nor
any of their respective properties enjoys any right of immunity in any
jurisdiction in India from suit, judgment, execution on a judgment or
attachment (whether before judgment or in aid of execution) in respect
of such obligations.
(aa) The Company has full power authority and legal right to enter
into and perform its obligations of indemnification and contribution
set forth in Section 7 of this Agreement and neither the
indemnification nor the contribution provisions of such Section 7
contravene current Indian law.
(ab) The ADSs have been duly approved for quotation on the New
York Stock Exchange, subject only to official notice of issuance and
evidence of satisfactory distribution, and the Shares are listed on the
Stock Exchange, Mumbai, the Bangalore Stock Exchange, the Delhi Stock
Exchange, the Ahmedabad Stock Exchange, the Cochin Stock Exchange and
the National Stock Exchange of India (collectively, the "Indian
Exchanges").
(ac) The Company is not and, after giving effect to the offering
and sale of the ADSs and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(ad) The issuance by the Company of the Shares and the sale of
ADSs to purchasers outside of India as contemplated by this Agreement
will not contravene any applicable law of India (including, without
limitation, any such applicable law limiting foreign ownership of the
Company of any subsidiary) or constitute a breach of or a default under
any of the Company's material agreements.
(ae) The Company and its subsidiaries (i) are in compliance with
any and all applicable laws and regulations of the jurisdiction in
which they operate (including the Republic of India) relating to the
protection of human health and
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safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(af) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(ag) 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 Securities Act
with respect to any securities of the Company or to require the Company
to include such securities with the ADSs registered pursuant to the
Registration Statement.
(ah) The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of consolidated financial
statements of the Company and its subsidiaries in conformity with
generally accepted accounting principles in the United States, and to
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ai) As at the date hereof, no Year 2000 Problem has occurred that
has had or could reasonably be expected to have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, or any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as whole; nothing
has come to the attention of the Company or any of its subsidiaries
that any of the suppliers, vendors, customers or other material third
parties has experienced any Year 2000 Problem that has had or could
reasonably be expected to have a material adverse effect on the
condition, financial or
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otherwise, or on the earnings, business or operations of the Company
and its subsidiaries, taken as a whole.
(aj) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; neither the Company nor any of its subsidiaries has
been refused any insurance coverage sought or applied for; and neither
the Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their respective businesses at
a cost that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, except as described in the
Prospectus.
(ak) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with or reasonably
necessary to conduct the business now operated by them, and none of the
foregoing intellectual property rights of the Company or its
subsidiaries breaches or is in conflict with asserted rights of others;
neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse affect on the Company and its subsidiaries, taken as a
whole.
(al) The Company and its subsidiaries have good and marketable
title to all property owned by them which is material to the business
of the Company and its subsidiaries, 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 with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them 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 and its subsidiaries, in each case except as
described in the Prospectus.
(am) Neither the Company nor any of its subsidiaries or any
officer, director, employee or agent thereof or any stockholder thereof
acting on behalf of the Company or any of its subsidiaries has done any
act or authorized, directed or participated in any act, in violation of
any provision of the United States Foreign Corrupt Practices Act of
1977, as amended, applicable to such entity or person.
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(an) The U.S. GAAP balance sheets, statements of income, of
retained earnings and of cash flows and the related notes thereto of
the Company included in the Registration Statement present fairly the
financial position of the Company on a consolidated basis as of the
dates indicated and the results of operations, retained earnings and
cash flows for the periods specified, (i) such financial statements
have been prepared in accordance with generally accepted accounting
principles in the United States and (ii) KPMG Peat Marwick India Ltd.,
who certified the audited U.S. GAAP financial statements of the Company
included in the Registration Statement, are independent auditors with
respect to the Company under the Securities Act and the applicable
published rules and regulations of the Commission thereunder. The
financial data set forth in the Prospectus under the captions
"Prospectus Summary--Summary Consolidated Financial Data", "Selected
Consolidated Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the
audited financial statements contained in the Registration Statement.
(ao) The Indian GAAP balance sheets and statements of income of
the Company included in the Registration Statement present fairly the
financial position of the Company on a consolidated basis as of the
dates indicated and the results of operations for the periods
specified, (i) such financial statements have been prepared in
accordance with generally accepted accounting principles in the
Republic of India and (ii) N.M. Raiji & Co., who certified the audited
Indian GAAP financial statements of the Company included in the
Registration Statement, are independent chartered accountants within
the rules of the code of professional ethics of the Institute of
Chartered Accountants of India.
(ap) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent; and the Company is not aware of any existing, threatened
or imminent labor disturbance by the employees of any of its principal
hardware and software suppliers, manufacturers or contractors that
could have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(aq) The Company has disclosed to the Underwriters copies of (i)
all minutes and agenda of the Company and each of its material
subsidiaries' Board of Directors meetings for the last three years and
(ii) all existing minutes and agenda of stockholders' meetings of the
Company for the last three years.
(ar) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
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(as) A registration statement on Form 8-A has been filed with and
declared effective by the Commission under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(at) The Directed Share Program, when instituted and administered
in accordance with its terms, including the distribution of the
Prospectus, any preliminary prospectus and any amendments or
supplements thereto to Participants and all communications and dealings
by the Company, its officers, directors, employees and affiliates and
any person acting on its or their behalf in connection with the
Directed Share Program, do not and will not contravene applicable laws
and regulations of the Republic of India. No consent, approval,
authorization or order of, or qualification with, any governmental body
or agency of the Republic of India, other than those obtained, is
required in connection with the offering or sale of the Directed Shares
pursuant to the Directed Share Program.
(au) Neither the Company nor any of its officers, directors,
employees or affiliates or any person acting on its or their behalf has
(i) offered or sold, or caused Morgan Stanley to offer or sell, ADSs to
any person who is not qualified to purchase such ADSs pursuant to the
Directed Share Program under the laws and regulations of the Republic
of India or (ii) otherwise engaged in any other action in connection
with the Directed Share Program that could reasonably be construed to
be in contravention of the laws or regulations of the Republic of
India.
(av) The Company has not offered, or caused Morgan Stanley or its
affiliates to offer, ADSs to any person pursuant to the Directed Share
Program with the intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or
type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm ADSs set forth in Schedule I hereto
opposite its name at $____ per ADS (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional ADSs, and the Underwriters shall have a one-
time right to purchase, severally and not jointly, up to [___] Additional ADSs
at the Purchase Price. If you, on behalf of the Underwriters, elect to exercise
such option, you shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice
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shall specify the number of Additional ADSs to be purchased by the Underwriters
and the date on which such shares are to be purchased. Such date may be the same
as the Closing Date (as defined below) but not earlier than the Closing Date nor
later than ten business days after the date of such notice. Additional ADSs may
be purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm ADSs. If any
Additional ADSs are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Additional ADSs (subject to such adjustments
to eliminate fractional shares as you may determine) that bears the same
proportion to the total number of Additional ADSs to be purchased as the number
of Firm ADSs set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm ADSs.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley on behalf of the Underwriters, it will not (and will not publicly
announce any intention to), during the period beginning on the date hereof and
ending 180 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of common
stock, ADSs, ADRs or any securities convertible into, or exercisable or
exchangeable for shares of common stock, or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of shares of common stock, ADSs or ADRs, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of shares of common stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the ADSs to be sold
hereunder or (B) the issuance by the Company of shares of common stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof of which the Underwriters have been advised in writing prior to
the date hereof provided that the Company has determined in good faith, and, to
the Company's knowledge, after due inquiry, that the person to whom such shares
are issued, will not offer, sell, contract to sell or otherwise dispose of such
shares in contravention of any lock-up agreement between such person and the
Underwriters.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the ADSs as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable. The Company is further advised by
you that the ADSs are to be offered to the public initially at $______ an ADS
(the "Public Offering Price") and to certain dealers selected by you at a price
that represents a concession not in excess of $_____ an ADS under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $_____ an ADS, to any Underwriter or to
certain other dealers.
4. Payment and Delivery. Payment for the Firm ADSs shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Firm ADSs for the respective accounts of the several
Underwriters at
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10:00 a.m., New York City time, on [date three business days after date hereof,
or four business days if deal prices after 4:30 p.m. EST], 2000 or at such other
time on the same or such other date, not later than [date five business days
after that], 2000 as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional ADSs shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [date 10 days after expiration of greenshoe],
2000, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Option Closing Date".
Certificates for the Firm ADSs and Additional ADSs shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm ADSs and Additional ADSs shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the ADSs to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the ADSs to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the ADSs on the Closing Date are subject to
the condition that the Registration Statement shall have become effective not
later than [__] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date :
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the ADSs on the terms and in the manner contemplated in
the Prospectus;
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(ii) (A) there shall not have occurred any downgrading,
suspension or withdrawal of, nor shall any notice have been given of
any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in,
any rating of the Company or any securities of the Company (including,
without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review
with an uncertain direction) by any recognized statistical rating
organization, (B) there shall not have occurred any change, nor shall
any notice have been given of any potential or intended change, in the
outlook for the rating of the Company or any securities of the Company
by any such rating organization or (C) no such rating organization
shall have given notice that it has assigned (or is considering
assigning) a lower rating to any outstanding debt securities of the
Company that that on which such debt securities were marketed; and
(iii) the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i), (ii) and (iii)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date.
(c) The Underwriters shall have received on the Closing Date an
opinion of Nishith Desai Associates, Indian counsel to the Company, dated
the Closing Date, to the effect that.
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and has all necessary power, authority and qualification to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus
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and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iii) The Company has an equity and issued capitalization as
set forth in the Prospectus and such capitalization complies with
Indian law. The summary of the charter documents and Indian law set
forth in the Prospectus is accurate and complete in all material
respects. The authorized share capital of the Company (including the
Shares) conforms to the description thereof under the heading
"Description of Capital Stock" in the Prospectus.
(iv) The shares of capital stock of the Company outstanding
prior to the issuance of the Shares represented by the ADSs have been
duly and validly authorized, are validly issued and outstanding, are
fully paid and nonassessable, conform to the description thereof
contained in the Prospectus and, to the best of our knowledge after
due inquiry, have been issued in compliance with the registration and
qualification requirements of Indian securities laws.
(v) The Shares represented by the ADSs and deposited pursuant to
the Deposit Agreement in accordance with this Agreement (the
"Deposited Shares") have been duly and validly authorized by the
Company, and when the Shares are issued and delivered in accordance
with the terms of this Agreement and the Deposit Agreement, the Shares
will be duly and validly issued and outstanding, fully paid, and
nonassessable, rank pari passu with the other Shares outstanding, and
will not be subject to any Lien, encumbrance, preemptive right,
equity, call right or other claim, and there are no restrictions on
the voting or transfer of the Deposited Shares, the ADSs or the ADRs,
except as described in the Prospectus and pursuant to the lock-up
agreement attached to this Agreement as Exhibit A. The Deposited
Shares, when deposited pursuant to the Deposit Agreement in accordance
with this Agreement, will continue to be validly issued and
outstanding and fully paid and nonassessable and will entitle the
holders thereof to the rights specified in the ADSs, the ADRs and the
Deposit Agreement. The form of certificate for the Shares conforms to
the requirements of Indian law and the charter documents of the
Company.
(vi) All of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims.
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(vii) The Company has full power and authority to enter into
and perform its obligations under this Agreement and the Deposit
Agreement (together, the "Principal Agreements"). This Agreement has
been duly authorized, executed and delivered by the Company. The
Deposit Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles. The
Deposit Agreement is in proper legal form for enforcement against the
Company in India, subject to the aforesaid qualification regarding
payment of stamp duties. The ADSs and the ADRs are in proper legal
form for enforcement against the Company in India. The Depositary and
any holder or owner of ADSs or ADRs issued under the Deposit
Agreements are each entitled to sue as plaintiff in the Indian courts
for the enforcement of their respective rights against the Company and
such access will not be subject to any conditions which are not
applicable to Indian persons.
(viii) The execution, delivery and performance by the Company
of the Principal Agreements and the consummation of the transactions
contemplated thereby (including the issuance of the Shares to be
represented by the ADSs, the deposit of such Shares pursuant to the
Deposit Agreement, the issuance and sale of the ADSs and the issuance
of the ADRs) will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company pursuant to the terms of, result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in a violation
of the charter documents of the Company or of any Indian law or of any
order, rule or regulation of any Indian court or governmental body or
agency having jurisdiction over the Company, or its properties or
assets or the rules and regulations of the Indian Exchanges.
(ix) No consent, approval, authorization or order of, or
filing, registration or qualification with, any Indian Exchange,
Indian court or governmental agency or body is required for the
execution, delivery and performance of the Principal Agreements, the
issuance or sale of the Deposited Shares or the ADSs, the issuance of
the ADRs and the consummation of the transactions contemplated by the
Principal Agreements, except such consents, approvals, authorizations,
orders, filings, registrations or qualifications listed in a schedule
to be attached to
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this opinion (all of which have been obtained or made and continue to
be in full force and effect).
(x) Each of the Registration Statement, the ADR Registration
Statement and the Prospectus has been duly approved by the Board of
Directors of the Company, and each of the Registration Statement and
the ADR Registration Statement has been duly executed by the officers
and directors of the Company set forth on the signature pages thereto.
(xi) The execution and delivery by the respective parties to the
Principal Agreements and the performance by such parties of the
obligations thereunder and the consummation of the transactions
contemplated by such agreements will not result in a breach or
violation of any of the terms and provisions of, (A) the Company's
Memorandum or Articles of Association, (B) any of the Company's
material agreements or (C) any applicable Indian law or, to the best
of such counsel's knowledge, any judgment, order or decree of any
governmental agency or body in India or any Indian court, stock
exchange or self-regulatory organization in India having jurisdiction
over such parties or any of their properties.
(xii) Stamp duty is payable in India in connection with the
issuance of the Shares in the name of the Depositary in the manner set
forth in the Prospectus; however, no stamp or other issuance or
transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Underwriters to India
or to any political subdivision or taxing authority thereof or therein
in connection with (A) the deposit with the Depositary of the Shares
against the issuance of ADSs or ADRs, (B) the purchase of the ADSs by
the Underwriters, (C) the sale and delivery by the Underwriters of the
ADSs or ADRs to the initial purchasers thereof, or (D) the
consummation of any other transactions contemplated in the Principal
Agreements in connection with the issuance and sale of the ADSs or the
issuance of the ADRs.
(xiii) The indemnification and contribution provisions set
forth in Section 7 of this Agreement do not contravene Indian law or
public policy.
(xiv) All dividends and other distributions declared and
payable on the Deposited Shares may under current Indian laws and
regulations be paid to the custodian of the Depositary in Indian
rupees that may be converted into foreign currency and freely
transferred out of India; all such dividends and other distributions
made to holders of Shares, ADSs or ADRs who are non-residents of India
will not be subject to Indian income, withholding or other taxes under
Indian laws and regulations and are otherwise free and clear of any
other tax duty, withholding or deduction,
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without the necessity of obtaining any Indian governmental
authorization in India.
(xv) The Indian courts will observe and give effect to the
choice of the law of the State of New York as the governing law of the
Principal Agreements.
(xvi) The Company has the power to submit, and has taken all
necessary action to submit, to the jurisdiction of the federal courts
of the United States of America and the courts of the State of New
York, in each case located in the City of New York and to appoint CT
Corporation System as its agent for service of process for this
purpose. The waiver by the Company of any objection to venue of a
proceeding in the courts noted in the first sentence of this paragraph
above is valid and legally binding. Service of process effected in the
manner set forth in this Agreement, assuming it is valid under New
York law, will be effective, subject to the Indian procedural laws
governing service of process, to confer valid personal jurisdiction
over the Company. The Company and the holders of Shares, ADSs or ADRs
can sue and be sued in their own names under the laws of India. The
irrevocable submission by the Company to the jurisdiction of the
courts specified in the first sentence of this paragraph constitutes a
valid and legally binding obligation of the Company so long as such
submission to jurisdiction is not contrary to Indian public policy,
and we have no reason to believe that such submission to jurisdiction
is contrary to Indian public policy. Any judgment obtained in a court
specified in the first sentence of this paragraph arising out of or in
relation to the obligations of the Company under the Principal
Agreements, as the case may be, or the transactions contemplated
thereby will be recognized and enforced by Indian courts subject to
what is provided under the caption "Enforceability of Civil
Liabilities" in the Prospectus.
(xvii) The Principal Agreements are in proper legal form for
enforcement against the Company in India, and any Underwriter in
respect of the Underwriting Agreement and each of the Depositary and
any holder of ADSs or ADRs in respect of the Deposit Agreements is
entitled to sue as plaintiff in the Indian courts for the enforcement
of their respective rights against the Company, and such access will
not be subject to any conditions which are not applicable to Indian
persons. None of the Underwriters is or will be deemed to be
resident, domiciled, carrying on business or subject to taxation in
India by reason of the ownership of Shares, ADSs or ADRs or the entry
into, performance and/or enforcement of this Agreement.
(xviii) The Company is subject to civil and commercial law with
respect to its obligations under the Principal Agreements, the ADSs
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and the ADRs. The execution and delivery by the Company and the
performance by the Company of its obligations thereunder constitute
private and commercial acts rather than governmental or public acts,
and neither the Company, any subsidiary of the Company nor any of
their respective properties enjoys any right of immunity in any
jurisdiction in India from suit, judgment, execution on a judgment or
attachment (whether before judgment or in aid of execution) in respect
of such obligations.
(xix) After due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required;
(xx) To the best of such counsel's knowledge after due inquiry,
the Company and its subsidiaries have all material licenses, permits,
certificates, franchises and other approvals or authorizations from
all regulatory officials and bodies that are necessary to the conduct
of their businesses and to the ownership or lease of their properties
as described or contemplated in the Prospectus.
(xxi) The Company and its subsidiaries (A) are in compliance
with any and all applicable environmental laws, (B) have received all
permits, licenses or other approvals required of them under applicable
environmental laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
environmental laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xxii) To the best of such counsel's knowledge, after due
inquiry, the Company has complied in all material respects with its
charter documents and, except as described in the Prospectus, with
each of its documents of title to its properties, mortgages, deeds of
trust, and loan agreements and there exists no default under any such
documents of title, mortgages, deeds of trust or loan agreements which
has not been waived nor has the Company nor any such subsidiary
received any notice of default with respect thereto.
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(xxiii) The statements (A) in the Prospectus under the captions
"Enforcement of Civil Liabilities," "Risk Factors--Risks Related to
Investments in Indian Companies," "Dividend Policy," "Price Range of
Equity Shares," "Management's Discussion and Analysis and Results of
Operations--Liquidity and Capital Resources," "Business--Facilities,"
"Business--Intellectual Property," "Business--Legal Proceedings,"
"Management," "Certain Transactions," "Description of Capital Stock,"
"Restrictions on Foreign Ownership of Indian Securities," "Government
of India Approvals" and "Taxation--Indian Taxation," and (B) in the
Registration Statement in Items 14 and 15 of the Registration
Statement, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(xxiv) To the best of such counsel's knowledge after due
inquiry, there are no persons with registration or other similar
rights to have any equity or debt securities registered for sale under
the Registration Statement or the ADR Registration Statement or
included in the offering contemplated by this Agreement, except for
such rights as have been duly waived.
(xxv) It is not necessary (a) in order to enable the
Underwriters or any of them to exercise or enforce any of their rights
under this Agreement; (b) to enable the Depositary or the holders or
owners of ADSs to exercise or enforce any of its rights under the
Deposit Agreement and (c) by reason of the entry into and/or
performance of this Agreement or the Deposit Agreement that any or all
of the Underwriters or the Depositary or the holders or owners of ADSs
should be licensed, qualified or entitled to do business in India.
(xxvi) None of the Underwriters or the Depositary is or will be
resident, domiciled, carrying on business or subject to taxation in
India by reason only of the entry into, performance and/or enforcement
of the Principal Agreements.
(xxvii) Such counsel is of the opinion that (A) the Directed
Share Program, when instituted and administered in accordance with its
terms, do not and will not contravene the applicable laws and
regulations of the Republic of India and (B) no consent, approval
authorization or order of, or qualification with, any governmental
body or agency in the Republic of India, other than those obtained, is
required in connection with the offering of the Directed Shares
pursuant to the Directed Share Program.
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(xxviii) Such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial statements
and schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion) comply
as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (B) has
no reason to believe that (except for financial statements and
schedules and other financial and statistical data as to which such
counsel need not express any belief) the Registration Statement and
the prospectus included therein at the time the Registration Statement
became effective contained any 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 and (C) has no
reason to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel need
not express any belief) the Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Wilson, Sonsini, Goodrich & Rosati, special United States
counsel for the Company, dated the Closing Date, to the effect that:
(i) This Agreement has been duly executed and delivered by the
Company.
(ii) When executed and delivered by the Company and the
Depositary, the Deposit Agreement will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(iii) Each of the Registration Statement and the ADR
Registration Statement has been declared effective by the Commission
under the Securities Act, and the Form 8-A Registration Statement has
been declared effective by the Commission under the Exchange Act. No
stop order suspending the effectiveness of either of the Registration
Statement, the ADR Registration Statement, or the Form 8-A
Registration Statement has been issued under the Securities Act or the
Exchange Act, as applicable, and, to the best knowledge of such
counsel, no proceedings for such purpose have been instituted or are
pending or are contemplated or threatened by the Commission. Any
required filing of the Prospectus
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and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period
required by such Rule 424(b).
(iv) The statements (A) in the Prospectus under the captions
"Management's Discussion and Analysis and Results of Operations--
Liquidity and Capital Resources," "Business--Legal Proceedings,"
"Business--Intellectual Property," "Management--Employee Benefit
Plans," "Certain Transactions," "Taxation--United States Federal
Taxation," "Shares Eligible For Future Sale" and "Underwriting," and
(B) in the Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein.
(v) After due inquiry, such counsel does not know of any legal
or governmental actions, suits or proceedings pending or threatened
which are required to be disclosed in the Registration Statement, the
ADR Registration Statement or the Prospectus, other than those
disclosed therein, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement, the ADR Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement or the ADR
Registration Statement that are not described or filed as required.
(vi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
and the Deposit Agreement will not contravene any provision of United
States federal of state law or the Memorandum and Articles of
Association of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement
and the Deposit Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the ADSs;
(vii) The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus will not be, an
"investment
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company" within the meaning of Investment Company Act of 1940 as
amended.
(viii) The ADRs conform to the requirements of the Deposit
Agreement and the New York Stock Exchange. The Deposit Agreement, the
ADSs and the ADRs conform to the description thereof in the
Prospectus.
(ix) The submission of the Company to the non-exclusive
jurisdiction of the New York courts and the appointment of CT
Corporation System as its authorized agent for the purpose described
in Section 13 of the Underwriting Agreement is legal, valid and
binding under the laws of the State of New York and service of process
effected in the manner set forth in that section will confer valid
personal jurisdiction over the Company.
(x) To the best of our knowledge and except as disclosed in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company or to require the
Company to include such securities with the ADSs or Shares registered
pursuant to the Registration Statement.
(xi) The Company and its subsidiaries (A) are in compliance with
any and all applicable environmental laws, (B) have received all
permits, licenses or other approvals required of them under applicable
environmental laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
environmental laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xii) Such counsel (A) is of the opinion that the Registration
Statement, ADR Registration Statement and Prospectus (except for
financial statements and schedules and other financial and statistical
data included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that (except for
financial statements and schedules and other financial and statistical
data as to which such counsel need not express any belief) the ADR
Registration Statement, the Registration Statement and the prospectus
included therein at the time the Registration
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Statement became effective contained any 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 and (C) has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as
to which such counsel need not express any belief) the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(e) The Underwriters shall have received on the Closing Date an
opinion of Ziegler, Ziegler & Altman, counsel for the Depositary, dated the
Closing Date, 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 agreement of the Depositary enforceable against the Depositary
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and
to general principles of equity;
(ii) when issued against the deposit of Shares in accordance with
the Deposit Agreement, the ADRs evidencing the ADSs being sold under
this Agreement will entitle the registered holders of the ADRs
evidencing such ADSs to the rights specified in such ADRs and in the
Deposit Agreement; and
(iii) the Deposit Agreement and the ADRs referred to in paragraph
(ii) above conform, in all material respects, to the descriptions
thereof in the prospectus under the caption "Description of American
Depositary Shares."
(f) The Underwriters shall have received on the Closing Date an
opinion of Milbank, Tweed, Hadley & McCloy LLP, United States counsel for
the Underwriters, dated the Closing Date, with respect to such matters as
the Underwriters may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(g) The Underwriters shall have received on the Closing Date an
opinion of Bhaishanker, Kanga & Girdharlal, Indian counsel for the
Underwriters, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable
them to pass upon such matters.
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With respect to Section 5(d)(xi) above, Wilson, Sonsini, Goodrich &
Rosati, Nishith Desai Associates, Milbank, Tweed, Hadley & McCloy, LLP, and
Bhaishanker, Kanga & Girdharlal may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
The opinion of Nishith Desai Associates described in Section 5(c)
above and Wilson, Sonsini,Goodrich & Rosati described in Section 5(d)
above, shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(h) The Company and the Depositary shall have executed and delivered
the Depositary Agreement, in form and substance satisfactory to the
Underwriters.
(i) The Depositary shall have furnished or caused to be furnished to
the Underwriters a certificate satisfactory to the Underwriters of one of
its authorized officers with respect to the deposit with it of the
underlying Shares against issuance of the ADRs evidencing the Firm ADSs and
the Additional ADSs, if any, the execution, issuance, countersignature and
delivery of the ADRs evidencing the Firm ADSs and the Additional ADSs, if
any, pursuant to the Deposit Agreement and such other matters related
thereto as the Underwriters reasonably request.
(j) Neither the Company nor any of its affiliates has taken or will
take in connection with the offering, directly or indirectly, any action,
including any bids or purchases, for the purpose of creating actual or
apparent active trading in, or of raising the price of, the ADRs, the ADSs
or the underlying Shares, or which is designed to or which has constituted,
or which might reasonably be expected to cause or result in, manipulation
of the price of any security of the Company.
(k) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from KPMG India Ltd., independent auditors, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the
ADR Registration Statement (if any) and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
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(l) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from N.M. Raiji & Co., independent chartered accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the selected Indian GAAP
financial data contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(m) The lock-up agreements between you and certain stockholders
officers, directors and employees of the Company relating to sales and
certain other dispositions of ADSs, Shares or securities convertible into
or exercisable or exchangeable for such Shares, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
(n) The several obligations of the Underwriters to purchase Additional
ADSs hereunder are subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional ADSs and other matters related to the issuance of the Additional
ADSs including, but not limited to, updated comfort letter and legal
opinions, as provided for in Section 5(k) and 5(l), and Sections 5(c),
5(d), 5(e), 5(f) and 5(g), respectively, each dated the Option Closing
Date.
(o) The Underwriters shall have received reimbursement of expenses of
counsel to the Underwriters as provided in 6(f), which may be deducted from
the proceeds of the offering paid on the Closing Date.
(p) No order or notice, oral or written, from any governmental or
regulatory authority of the Republic of India has been received by the
Company to the effect that the offering contemplated by this Agreement, if
consummated, will contravene applicable laws or regulations of the Republic
of India.
(q) The New York Stock Exchange shall have approved the ADSs for
listing, subject only to official notice of issuance and evidence of
satisfactory distribution.
(r) The Company shall have received the approval of the FIPB for the
offering of ADSs.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
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(a) To furnish to you, without charge, four signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement, the
ADSs Registration Statement or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object, and to
file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the ADSs as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which ADSs may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the ADSs for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending June 30, 2001 that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and
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the Company's accountants in connection with the registration and delivery
of the ADSs under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement,
the ADR Registration Statement, any preliminary prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer
and delivery of the ADSs to the Underwriters, including any stamp duties,
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any "Blue Sky" or legal investment memorandum in connection with
the offer and sale of the ADSs under state securities laws and all fees and
expenses in connection with the qualification of the ADSs for offer and
sale under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees, disbursements and expenses
of counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky or legal investment memorandum, (iv) all
filing fees and the reasonable fees, disbursements and expenses of counsel
to the Underwriters incurred in connection with the review and
qualification of the offering of the ADSs by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating
to the Shares, (vi) all costs and expenses incident to listing the ADRs on
the New York Stock Exchange, (vii) the reasonable 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 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 CT Corporation System as agent for service of process
in the United States, (ix) the cost of printing certificates representing
the Shares and the ADSs, (x) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the ADSs, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, the cost of any aircraft chartered in connection with the
road show, and other reasonable fees and expenses incurred by the
Underwriters on behalf of the Company, (xi) all fees, disbursements and
expenses of counsel incurred by the Underwriters in connection with the
Directed Share Program and stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program, (xii) all expenses in connection with any offer and sale of
the Shares or ADSs outside the United States, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside the United States and (xiii) all
other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section.
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It is understood, however, that except as provided in this Section, Section
7 entitled "Indemnity and Contribution", Section 8 entitled "Directed Share
Program Indemnification," and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of
any of the ADSs by them and any advertising expenses connected with any
offers they may make.
(g) To place stop transfer orders on any Directed Shares that have
been sold to Participants subject to the three month restriction on sale,
transfer, assignment, pledge or hypothecation imposed by NASD Regulation,
Inc. under its Interpretative Material 2110-1 on free-riding and
withholding to the extent necessary to ensure compliance with the three
month restrictions.
(h) To comply with all applicable securities and other applicable
laws, rules and regulations in each jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, the ADR Registration Statement or any amendment thereof, the ADR
Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such
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<PAGE>
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, the ADR Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 7(a) or 7(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Morgan Stanley, in
the case of parties indemnified pursuant to Section 7(a), and by the
Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless
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such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the ADSs or (ii) if the
allocation provided by clause 7(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 7(d)(i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the offering
of the ADSs shall be deemed to be in the same respective proportions as the
net proceeds from the offering of the ADSs (before deducting expenses)
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the ADSs. The relative fault of the Company on the one hand and
the Underwriters on the other hand shall be determined by reference to,
among other things, whether 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 or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section
7 are several, in proportion to the respective number of ADSs they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 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 that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the ADSs underwritten by it and distributed to the
public were
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offered to the public exceeds the amount of any damages that 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
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of
and payment for any of the ADSs.
8. Directed Share Program Indemnification.
(a) The Company agrees to indemnify and hold harmless Morgan Stanley
and its affiliates and each person, if any, who controls Morgan Stanley or
its affiliates within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act ("Morgan Stanley Entities"), from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i)
caused by any untrue statement or alleged untrue statement of a material
fact contained in any material prepared by or with the consent of the
Company for distribution to Participants in connection with the Directed
Share Program, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the
Participant has agreed to purchase, (iii) caused by or related to alleged
or actual noncompliance or violation of laws and regulations of the
Republic of India, or (iv) otherwise related to, arising out of, or in
connection with the Directed Share Program other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross
negligence of Morgan Stanley Entities.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any Morgan Stanley Entity in respect of which
indemnity may be sought pursuant to Section 8 (a), the Morgan Stanley
Entity seeking indemnity shall promptly notify the Company in writing and
the Company, upon request of the Morgan Stanley Entity, shall retain
counsel reasonably satisfactory to the Morgan Stanley Entity to represent
the Morgan
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Stanley Entity and any other the Company may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any Morgan Stanley Entity shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Morgan Stanley Entity unless (i)
the Company shall have agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the Company and the Morgan Stanley Entity and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not, in
respect of the legal expenses of the Morgan Stanley Entities in connection
with any proceeding or related proceedings the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Morgan Stanley Entities. Any such firm for the
Morgan Stanley Entities shall be designated in writing by Morgan Stanley.
The Company shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the Company agrees to
indemnify the Morgan Stanley Entities from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time a Morgan Stanley Entity shall have
requested the Company to reimburse it for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
Company agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by the Company of the aforesaid request and
(ii) the Company shall not have reimbursed the Morgan Stanley Entity in
accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of Morgan Stanley,
effect any settlement of any pending or threatened proceeding in respect of
which any Morgan Stanley Entity is or could have been a party and indemnity
could have been sought hereunder by such Morgan Stanley Entity, unless such
settlement includes an unconditional release of the Morgan Stanley Entities
from all liability on claims that are the subject matter of such
proceeding.
(c) To the extent the indemnification provided for in Section 8(a) is
unavailable to a Morgan Stanley Entity or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the
Company, in lieu of indemnifying the Morgan Stanley Entity thereunder,
shall contribute to the amount paid or payable by the Morgan Stanley Entity
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Morgan Stanley Entities on the other
hand from the offering of the Directed Shares or (ii) if the allocation
provided by Section 8(c)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in Section 8(c)(i) above but also the relative fault of the
Company on the one hand and of the Morgan Stanley Entities on the other
hand in connection
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with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and of the Morgan Stanley Entities on the other hand in connection
with the offering of the Directed Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the Morgan Stanley Entities for the
Directed Shares, bear to the aggregate Public Offering Price of the ADSs.
If the loss, claim, damage or liability is caused by an untrue or alleged
untrue statement of a material fact, the relative fault of the Company on
the one hand and the Morgan Stanley Entities on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement or the omission or alleged omission relates to
information supplied by the Company or by the Morgan Stanley Entities and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company and the Morgan Stanley Entities agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Morgan Stanley Entities were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(c). The amount paid or payable by the Morgan
Stanley Entities as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by the Morgan Stanley Entities in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, no Morgan Stanley Entity shall be
required to contribute any amount in excess of the amount by which the
total price at which the Directed Shares distributed to the public were
offered to the public exceeds the amount of any damages that such Morgan
Stanley Entity has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Morgan Stanley
Entity at law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Morgan Stanley Entity or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Directed Shares.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or
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materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, The Stock Exchange, Mumbai, the National
Stock Exchange, the Bangalore Stock Exchange, the Delhi Stock Exchange, the
Ahmedabad Stock Exchange or the Cochin Stock Exchange, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by any of the Republic of India,
United States Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses 9(a)(i)
through 9(a)(iv), such event, singly or together with any other such event,
makes it, in your judgment, impracticable to market the ADSs on the terms and in
the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase ADSs that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of ADSs which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the ADSs to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm ADSs set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm ADSs set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as you may specify, to purchase the ADSs which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of ADSs that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such number
of ADSs without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm ADSs
and the aggregate number of Firm ADSs with respect to which such default occurs
is more than one-tenth of the aggregate number of Firm ADSs to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
ADSs are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional ADSs and the aggregate number of Additional ADSs with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional ADSs to be
36
<PAGE>
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional ADSs or (ii)
purchase not less than the number of Additional ADSs that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Consent to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding against the Company brought
by any Underwriter or by any person who controls any Underwriter arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York state or Federal 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 non-
exclusive personal jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation System, New York, NY, as
its 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 not be revoked without the prior written consent of Morgan Stanley & Co.
The Company represents and warrants that CT Corporation System has agreed to act
as such agent for service of process and the Company 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 CT Corporation System and written notice of such service
to the party that has appointed it shall be deemed, in every respect, effective
service of process upon such party, as the case may be.
37
<PAGE>
14. Waiver of Immunity. With respect to any proceeding related
hereto, each party irrevocably waives, to the fullest extent permitted by
applicable law, all immunity (whether on the basis of sovereignty or otherwise)
from jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled, and with
respect to any judgment related hereto, each party waives any such immunity in
any court of competent jurisdiction, and will not raise or claim or cause to be
pleaded any such immunity at or in respect of any such related proceeding or
related judgment, including, without limitation, any immunity pursuant to the
United States Foreign Sovereign Immunities Act of 1976, as amended.
15. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than U.S. dollars, the parties hereto agree and subject to receipt of any
necessary approval of the Reserve Bank of India (which the Company hereby agrees
to use its best efforts to obtain at the earliest possible date), to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
the rate at which in accordance with normal banking procedures Morgan Stanley
could purchase U.S. dollars with such other currency in New York City on the
business day preceding that on which final judgment is given.
The obligation of the Company in respect of any sum due from the Company to
any Underwriter, or of any Underwriter in respect of any sum due from such
Underwriter to the Company shall, notwithstanding any judgment in a currency
other than U.S. dollars, not be discharged until the first business day,
following receipt by such Underwriter or the Company, respectively, of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter or the Company, respectively, may in accordance with
normal banking procedures purchase U.S. dollars with such other currency; if the
U.S. dollars so purchased are less than the sum originally due to such
Underwriter hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the U.S. dollars so purchased are greater than the sum originally due
to such Underwriter hereunder, such Underwriter agrees to pay to the Company an
amount equal to the excess of the U.S. dollars to purchased over the sum
originally due to such Underwriter hereunder.
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<PAGE>
16. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
WIPRO LIMITED
By:____________________________
Name:
Title:
39
<PAGE>
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON (SINGAPORE) LIMITED
BANC OF AMERICA SECURITIES LLC
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: MORGAN STANLEY & CO. INCORPORATED
By:__________________________
Name:
Title:
40
<PAGE>
SCHEDULE I
Number of
Firm ADSs
To Be Purchased
Underwriter
Morgan Stanley & Co. Incorporated..........................
Credit Suisse First Boston (Singapore) Limited.............
Banc of America Securities LLC............................. __________________
Total................................................. ==================
<PAGE>
Exhibit A
LOCK-UP LETTER
_____________, 2000
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston (Singapore) Limited
Banc of America Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated ("Morgan
Stanley") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with Wipro Limited, a public company with limited liability duly
organized and existing under the laws of the Republic of India (the "Company"),
providing for the public offering (the "Public Offering") by the several
Underwriters, including Morgan Stanley (the "Underwriters"), of _______ American
depositary shraes (the "ADSs"), each representing ___ equity shares, Rs. 2 par
value per share of the Company (the "Shares").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
agrees that, without the prior written consent of Morgan Stanley on behalf of
the Underwriters, the undersigned will not (and will not publicly announce any
intention to), during the period commencing on the date hereof and ending 180
days after the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any ADSs or Shares or any other securities convertible
into or exercisable or exchangeable for ADSs or Shares or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the ADSs or Shares, or any other
securities convertible into or exercisable or exchangeable for ADSs or Shares,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of ADSs or Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) the sale of any ADSs
to the Underwriters pursuant to the Underwriting Agreement or (b) transactions
relating to ADSs or Shares or other securities acquired in open market
transactions after the completion of the Public Offering. In addition, the
undersigned agrees that, without the prior written consent of Morgan Stanley on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any ADSs
or Shares or any other securities convertible into or exercisable or
exchangeable for ADSs or Shares. The undersigned also agrees and consents to
the entry of stop transfer
<PAGE>
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's ADSs or Shares except in compliance with the
foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying
upon this Lock-Up Agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
The undersigned acknowledges that this Lock-Up Agreement (a) contains the
entire agreement between Morgan Stanley and the undersigned with respect to the
subject matter hereof and (b) shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the conflicts of
laws principles thereof.
Very truly yours,
_________________________
(Name)
_________________________
(Address)
