GRASIM INDUSTRIES LTD. and CITIBANK, N.A., As Depositary and HOLDERS AND BENEFICIAL OWNERS OF GLOBAL DEPOSITARY RECEIPTS DEPOSIT AGREEMENT Dated as of November 25, 1992
Exhibit
(c)(i)
GRASIM
INDUSTRIES LTD.
and
CITIBANK,
N.A.,
As
Depositary
and
HOLDERS
AND BENEFICIAL OWNERS OF
GLOBAL
DEPOSITARY RECEIPTS
Dated as
of
November
25, 1992
TABLE OF
CONTENTS
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Page
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| ARTICLE I |
DEFINITIONS
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1
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SECTION
1.01.
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Agreement
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1
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SECTION
1.02.
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Beneficial
Owner
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1
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SECTION
1.03.
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Book-Entry
GDSs
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1
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SECTION
1.04.
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Commission
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2
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SECTION
1.05.
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Company
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2
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SECTION
1.06.
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Custodian
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2
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SECTION
1.07.
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Depositary
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2
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SECTION
1.08.
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Deposited
Securities
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2
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SECTION
1.09.
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Dollars;
Rupees
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2
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SECTION
1.10.
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DTC
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2
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SECTION
1.11.
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45
Day Legend
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2
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SECTION
1.12.
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GDRs
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2
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SECTION
1.13.
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GDSs
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2
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SECTION
1.14.
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Holder
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3
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SECTION
1.15.
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India
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3
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SECTION
1.16.
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Indian
Legend
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3
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SECTION
1.17.
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Initial
Deposit
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3
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SECTION
1.18.
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Master
GDR
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3
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SECTION
1.19.
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Nominee
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3
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SECTION
1.20.
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Physical
GDSs
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3
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SECTION
1.21.
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Principal
London ▇▇▇▇▇▇
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▇
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▇▇▇▇▇▇▇
▇.▇▇.
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▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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3
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SECTION
1.23.
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QIB
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4
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SECTION
1.24.
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▇▇▇▇▇▇▇▇▇
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▇
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SECTION
1.25.
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Regulation
S
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4
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SECTION
1.26.
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Rule
144A
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4
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SECTION
1.27.
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Right
of First Refusal Legend
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4
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SECTION
1.28.
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Securities
Act
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4
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SECTION
1.29.
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Securities
Act Legend
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4
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SECTION
1.30.
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Securities
Exchange Act
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5
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SECTION
1.31.
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Shares
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5
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SECTION
1.32.
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Transfer
Date
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5
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SECTION
1.33.
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United
States
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5
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ARTICLE
II
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BOOK-ENTRY SYSTEM, FORM OF GDRs, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF GDRs |
5
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SECTION
2.01.
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Book
Entry System; Form and Transferability of GDRs.
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5
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SECTION
2.02.
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Deposit
of Shares
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6
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SECTION
2.03.
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Execution
and Delivery of GDRs
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8
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i
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SECTION
2.04.
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Transfer
of GDRs; Combination and Split-up of GDRs
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9
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SECTION
2.05.
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Surrender
of GDRs and Withdrawal of Deposited Securities
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9
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SECTION
2.06.
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Limitations
on Execution and Delivery, Transfer, etc. of
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GDRs;
Suspension of Delivery, Transfer, etc
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11
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SECTION
2.07.
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Lost
GDRs, etc
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11
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SECTION
2.08.
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Cancellation
and Destruction of Surrendered GDRs
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11
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SECTION
2.09.
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Interchangeability
of Book-Entry GDSs and Separate
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GDR
Certificates
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11
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SECTION
2.10.
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Maintenance
of Records
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12
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| ARTICLE III |
CERTAIN
OBLIGATIONS OF HOLDERS OF GDRs
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12
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SECTION
3.01.
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Filing
Proofs, Certificates and Other Information
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12
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SECTION
3.02.
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Liability
of Holders and Beneficial Owners for Taxes
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and
Other Charges
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13
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SECTION
3.03.
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Representations,
Warranties and Agreements on Deposit,
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Transfer
and Surrender and Withdrawal of Shares or GDRs
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13
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SECTION
3.04.
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Ownership
Restrictions
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14
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SECTION
3.05.
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Disclosure
of Interests
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14
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| ARTICLE IV |
RIGHTS
RELATING TO THE DEPOSITED SECURITIES; CERTAIN
OBLIGATIONS OF THE DEPOSITARY
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14
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SECTION
4.01.
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Power
of Attorney
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14
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SECTION
4.02.
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Cash
Distributions; Withholding
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14
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SECTION
4.03.
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Distributions
Other than Cash, Shares or Rights
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15
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SECTION
4.04.
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Distributions
in Shares
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15
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SECTION
4.05.
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Rights
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16
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SECTION
4.06.
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Conversion
of Foreign Currency
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17
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SECTION
4.07.
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Fixing
of Record Date
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18
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SECTION
4.08.
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Voting
of Deposited Securities
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19
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SECTION
4.09.
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Changes
Affecting Deposited Securities
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19
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SECTION
4.10.
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Transmittal
by the Depositary of Company Notices, Reports
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and
Communications
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19
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SECTION
4.11.
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Withholding
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20
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SECTION
4.12.
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Available
Information
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20
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| ARTICLE V |
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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SECTION
5.01.
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Maintenance
of Office and Transfer Books by the Depositary
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21
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SECTION
5.02.
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List
of Holders
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21
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SECTION
5.03.
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Obligations
of the Depositary, the Custodian and the Company
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21
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SECTION
5.04.
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Prevention
or Delay in Performance by the Depositary or
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the
Company
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22
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SECTION
5.05.
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Resignation
and Removal of the Depositary; Appointment
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of
Successor Depositary
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22
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SECTION
5.06.
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Charges
of Depositary
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23
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SECTION
5.07.
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The
Custodian
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24
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ii
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SECTION
5.08.
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Notices,
Reports and Communications
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24
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SECTION
5.09.
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Issuance
of Additional Shares, etc
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25
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SECTION
5.10.
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Indemnification
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26
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SECTION
5.11.
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Certain
Rights of the Depositary; Limitations
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26
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| ARTICLE VI |
AMENDMENT
AND TERMINATION
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27
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SECTION
6.01.
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Amendment
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27
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SECTION
6.02.
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Termination
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28
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| ARTICLE VII |
MISCELLANEOUS
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28
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SECTION
7.01.
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Counterparts
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28
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SECTION
7.02.
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No
Third-Party Beneficiaries
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28
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SECTION
7.03.
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Severability
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29
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SECTION
7.04.
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Holders
and Beneficial Owners as Parties; Binding Effect
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29
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SECTION
7.05.
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Notices
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29
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SECTION
7.06.
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Governing
Law
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29
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SECTION
7.07.
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Prohibition
of Assignment
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30
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iii
DEPOSIT
AGREEMENT dated as of November 25, 1992 between GRASIM INDUSTRIES LIMITED, a
corporation organized under the laws of India (the "Company"), CITIBANK,
N.A., a national banking association organized under the laws of the United
States of America, as Depositary (the "Depositary"), all
Holders from time to time of the Global Depositary Receipts issued hereunder and
all owners, from time to time, of any beneficial interest in such Receipts and
the Global Depositary Shares represented by such Receipts.
W I T N E S S E T H:
WHEREAS,
the Company desires to provide for the initial deposit by the Company (on behalf
of the Managers referred to in the Underwriting Agreement dated November 25,
1992 between the Company and such Managers) of equity shares, nominal value 10
Rupees per share, of the Company (the "Shares"), for the
subsequent deposit of additional Shares from time to time thereafter with the
Depositary or with the Custodian which at the date hereof is Citibank, N.A.
(Bombay Branch) (the "Custodian"), as agent
of the Depositary for the purposes set forth in this Deposit Agreement, for the
creation of Global Depositary Shares ("GDSs") representing
the Shares so deposited and for the execution and delivery of Global Depositary
Receipts ("GDRs") evidencing the
GDSs;
WHEREAS,
the Company is entering into this Agreement to facilitate the holding of equity
interests in the Company outside of India, and as a condition precedent to the
establishment of the depositary facility hereunder and to the initial and
subsequent deposits of Shares hereunder, the Company desires to ensure that its
designees have a right of first refusal to purchase Shares withdrawn from the
facility before such Shares are transferred by the person making such
withdrawal;
NOW
THEREFORE in consideration of the premises the parties agree as
follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.01. Agreement. The
term "Agreement" shall mean this instrument as it may from time to time be
amended in accordance with the terms hereof and all instruments supplemental
hereto.
SECTION
1.02. Beneficial
Owner. The term "Beneficial Owner" shall mean any person
owning any beneficial interest in a GDR issued hereunder but who is not the
Holder of such GDR.
SECTION
1.03. Book-Entry
GDSs. The term "Book-Entry GDSs" shall mean the GDSs which are
evidenced in a book-entry form. All Book-Entry GDSs will be evidenced
by the Master GDR so long as The Depository Trust Company serves as depository
for GDSs.
SECTION
1.04. Commission. The
term "Commission" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United
States.
SECTION
1.05. Company. The
term "Company" shall mean Grasim Industries Limited, a corporation organized and
existing under the laws of India, having its registered office at Birlagram,
Nagda 456331, Madhya Pradesh, India, and its successors.
SECTION
1.06. Custodian. The
term "Custodian" shall mean, as of the date hereof, Citibank, N.A., Bombay
branch, as agent of the Depositary for the purposes of this Agreement, and any
other firm or corporation which may be appointed by the Depositary pursuant to
the terms of Section 5.07, as substitute custodian or an additional custodian
hereunder, as the context shall require, and the term "Custodian" shall mean all
of them, collectively.
SECTION
1.07. Depositary. The
term "Depositary" shall mean Citibank, N.A., a national banking association
organized under the laws of the United States of America, and any successor as
depositary hereunder.
SECTION
1.08. Deposited
Securities. The term "Deposited Securities" as of any time
shall mean the Shares at such time deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject in the
case of cash to the provisions of Section 4.07.
SECTION
1.09. Dollars;
Rupees. The term "dollars" shall mean United States
dollars. The term "Rupees" shall mean Indian Rupees.
SECTION
1.10. DTC. The
term "DTC" shall mean The Depository Trust Company.
SECTION
1.11. 45 Day
Legend. The term "45 Day Legend" shall mean the following
statement:
THIS
SECURITY WAS WITHDRAWN FROM A DEPOSITARY FACILITY. THE HOLDER HEREOF
AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON PRIOR TO JANUARY 16, 1993
OR SUCH EARLIER TIME AS IS NOTIFIED TO THE HOLDER HEREOF BY THE
ISSUER.
SECTION
1.12. GDRs. The
term "GDRs" shall mean the Global Depositary Receipts issued hereunder
evidencing GDSs, as such Global Depositary Receipts may be amended from time to
time in accordance with the provisions of this Agreement. A GDR may
evidence any number of GDSs. Where the context requires, the term
"GDR" shall refer to the Master GDR.
SECTION
1.13. GDSs. The
term "GDSs" shall mean the rights evidenced by the GDRs issued hereunder and the
interests in the Deposited Securities represented thereby. Each GDS
shall represent one Share, until there shall occur a distribution upon Deposited
Securities covered by Section 4.04 or a change in Deposited Securities covered
by Section 4.09 with respect to which additional Receipts are not executed and
delivered, and thereafter GDSs shall represent the Shares or Deposited
Securities specified in such Sections.
2
SECTION
1.14. Holder. The
term "Holder" shall mean the person in whose name a GDR is registered on the
books of the Depositary maintained for such purpose.
SECTION
1.15. India. The
term "India" shall mean the Republic of India.
SECTION
1.16. Indian
Legend. The term "Indian Legend" shall mean the following
statement:
THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER
THAT THIS SECURITY AND THE GLOBAL DEPOSITARY SHARES REPRESENTED HEREBY MAY NOT
AT ANY TIME BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY TO ANY PERSON IN INDIA OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF A RESIDENT OF INDIA.
SECTION
1.17. Initial
Deposit. The term "Initial Deposit" shall mean the deposit of
Shares with the Custodian on behalf of the Managers pursuant to the Underwriting
Agreement between the Company and the Managers named therein, dated November 25,
1992.
SECTION
1.18. Master
GDR. The term "Master GDR" shall mean the Receipt registered
in the name of the nominee of The Depository Trust Company, evidencing all
Book-Entry GDSs, as provided by Section 2.01 of this Deposit
Agreement.
SECTION
1.19. Nominee. The
term "Nominee" when used with respect to the Depositary shall mean such nominee
or nominees of the Depositary as it shall appoint from time to time to act on
its behalf in connection with the performance of its duties and obligations
under this Deposit Agreement. The Nominee shall perform in whatever
capacity and to whatever extent under this Deposit Agreement as the Depositary
designates in its appointment of the Nominee. Such appointment may be
evidenced by written agreement, letter, telegram, telex or facsimile
transmission or orally with subsequent confirming, agreement, letter, telegram,
telex or facsimile transmission.
SECTION
1.20. Physical
GDSs. The term "Physical GDSs" shall mean the GDSs evidenced
by GDRs other than the Master GDR, including but not limited to separate GDRs
delivered pursuant to Section 2.09 of this Agreement.
SECTION
1.21. Principal London
Office. The term "Principal London Office", when used with
respect to the Depositary, shall be the principal office of the Depositary in
London, England, which, at the date of this Agreement, is located at ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
SECTION
1.22. Principal New York
Office. The term "Principal New York Office", when used with
respect to the Depositary, shall be the principal office of the Depositary in
The City of New York at which at any particular time its corporate trust
business shall be administered, which, at the date of this Agreement, is located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
3
SECTION
1.23. QIB. The
term "GIB" shall mean a "qualified institutional buyer" as that term is defined
in Rule 144A.
SECTION
1.24. Registrar. The
term "Registrar" shall mean any bank or trust company having an office in the
Borough of Manhattan, The City of New York, appointed by the Depositary to
register GDRs and transfers of GDRs as herein provided, and shall include any
co-registrar appointed by the Depositary, upon the request or with the approval
of the Company, for such purposes.
SECTION
1.25. Regulation
S. The term "Regulation S" shall mean Rules 901 through 904
under the Securities Act, as such rules are from time to time
amended.
SECTION
1.26. Rule
144A. The term "Rule 144A" shall mean Rule 144A under the
Securities Act, as from time to time amended.
SECTION
1.27. Right of First Refusal
Legend. The term "Right of First Refusal Legend" shall mean
the following statement:
THIS
SECURITY IS SUBJECT TO A RIGHT OF FIRST REFUSAL AGREEMENT PURSUANT TO WHICH
NEITHER THIS SECURITY NOR ANY INTEREST HEREIN MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT UNDER CERTAIN CIRCUMSTANCES SPECIFIED
THEREIN. NO TRANSFER OF SHARES MADE IN VIOLATION OF SUCH AGREEMENT
SHALL BE GIVEN EFFECT OR REGISTERED BY THE ISSUER.
SECTION
1.28. Securities
Act. The term "Securities Act" shall mean the United States
Securities Act of 1933 and the rules and regulations promulgated thereunder, all
as from time to time amended.
SECTION
1.29. Securities Act
Legend. The term "Securities Act Legend" shall mean the
following statement:
NEITHER
THIS SECURITY NOR ANY SECURITY REPRESENTED HEREBY HAS BEEN REGISTERED UNDER THE
UNITED STATES OF AMERICA SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY OR ANY
DEPOSITARY RECEIPT REPRESENTING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUER THAT THIS SECURITY AND ANY SECURITY REPRESENTED HEREBY MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER THAT IS AWARE THAT THE RESALE, PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT.
4
SECTION
1.30. Securities Exchange
Act. The term "Securities Exchange Act" shall mean the United
States Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder, all as from time to time amended.
SECTION
1.31. Shares. The
term "Shares" shall mean the equity shares, nominal value 10 Rupees per share,
of the Company and shall include evidence of the right to receive Shares;
provided, however, that, if there shall occur any change in par value, a
split-up or consolidation or any other reclassification or, upon the occurrence
of an event described in Section 4.09, an exchange or conversion in respect of
the Shares of the Company, the term "Shares" shall thereafter represent the
successor securities resulting from such change in par value, split-up or
consolidation or such other reclassification or such exchange or
conversion.
SECTION
1.32. Transfer
Date. The term "Transfer Date" shall mean the date which is 45
days after the date of the Initial Deposit, or such earlier date as may be
notified by the Company to the Holders.
▇▇▇▇▇▇▇
▇.▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇. The term "United States" shall mean the United States
of America, its territories and possessions, any State of the United States, and
the District of Columbia.
ARTICLE
II
BOOK-ENTRY
SYSTEM, FORM OF GDRs,
DEPOSIT
OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND
SURRENDER OF GDRs
SECTION
2.01. Book Entry System; Form and
Transferability of GDRs.
(a) Book Entry
System. The Company and the Depositary shall make application
to DTC for acceptance of the Book-Entry GDSs in its book-entry settlement
system. The Company hereby appoints the Depositary acting through any
authorized officer thereof as its attorney-in-fact, with full power to delegate,
for purposes of executing any agreements, certifications or other instruments or
documents necessary or desirable in order to effect the acceptance of the GDSs
for DTC eligibility, including but not limited to the Letter of Representations,
in the form attached hereto as Exhibit A, with such modifications as are agreed
by the Company and the other parties thereto.
(b)
[PAGE
7 MISSING FROM MASTER]
decreased
by making adjustments to such records of the Depositary.
5
GDRs
shall be executed and dated by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the GDRs shall have been
appointed and such GDRs are countersigned by the manual signature of a duly
authorized signatory of the Registrar and dated by such signatory. No
GDR shall be entitled to any benefits under this Agreement or be valid or
obligatory for any purpose, unless such GDR shall have been executed by the
Depositary by the manual signature of a duly authorized signatory, or, if a
Registrar shall have been appointed, by the manual signature of a duly
authorized signatory of the Registrar, and such execution of any GDR by manual
signature shall be conclusive evidence, and the only evidence, that such GDR has
been duly executed and delivered hereunder. The Depositary shall
maintain books in which each GDR so executed and delivered as hereinafter
provided and the transfer of each such GDR shall be registered. GDRs
bearing the facsimile signature of a duly authorized signatory of the Depositary
who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to hold such
position prior to the execution of such GDRs by the Registrar and their delivery
or such signatory did not hold such position at the date of such
GDRs.
The GDRs
shall be endorsed with the Securities Act Legend and the Indian Legend and may
be endorsed with or have incorporated in the text thereof such other legends,
recitals or changes not inconsistent with the provisions of this Agreement as
may be required (i) by the National Association of Securities Dealers, Inc. (the
"NASD") in
order for the GDRs to be tradeable on the NASD's "PORTAL" market or any other
market developed for the trading of securities pursuant to Rule 144A or (ii) to
comply with any applicable law.
The GDRs
shall bear a CUSIP number that is different from the CUSIP number that is or may
be assigned to any depositary receipts subsequently issued pursuant to any other
arrangement with the Depositary which are not GDRs issued
hereunder.
(c) Transferability. Subject
to any limitations set forth in a GDR or in this Agreement, when such GDR is
properly endorsed or accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard industry practice), and upon
compliance with the restrictions on registration of transfer set forth in any
legends appearing on such GDR, title to such GDR (and to each GDS evidenced
thereby) shall be transferable by delivery with the same effect as in the case
of a negotiable instrument in accordance with the laws of the State of New York;
provided, however, that the
Company and the Depositary, notwithstanding any notice to the contrary, may deem
and treat the Holder of a GDR as the absolute owner thereof for any purpose,
including but not limited to the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Agreement and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Agreement to any holder of
a GDR unless such holder is the Holder thereof.
SECTION
2.02. Deposit of
Shares. The Managers, or the Company or any other person
acting on behalf of the Managers, will make the Initial Deposit by physical
delivery to the Custodian of Shares, registered in the name of the Depositary or
its Nominee (as directed by the Depositary) who will be the holder of record of
all such Shares. Subject to the terms and conditions of this
Agreement, upon such Initial Deposit of Shares, the Depositary shall execute and
deliver to Citibank, N.A. as custodian for DTC the Master GDR evidencing the
Book-Entry GDSs created by such Initial Deposit.
6
Subject
to the terms and conditions of this Agreement, the Custodian shall not accept
Shares for deposit under this Agreement subsequent to the Initial Deposit other
than (i) Shares issued to the person in whose name Deposited Securities are
recorded (the "Registered
Shareholder") as a dividend or free distribution upon such Deposited
Securities pursuant to Section 4.04 (including a bonus issue of Shares) to the
Registered Shareholder, (ii) Shares acquired by the Registered Shareholder,
Holders or Beneficial Owners from the Company through the exercise of rights,
warrants or options distributed by the Company to such persons in respect of
Deposited Securities, (iii) securities issued by the Company to the Registered
Shareholder as such in respect of Deposited securities as a result of a
reclassification of Shares or other Deposited Securities or similar event
pursuant to Section 4.09, (iv) Shares issued in connection with the exercise of
any overallotment rights provided in the Underwriting Agreement and (v) as may
otherwise be permitted by applicable law and agreed by the Company and the
Depositary in writing from time to time.
[PAGE
10 MISSING FROM MASTER]
sion of
this Agreement to the contrary, the Depositary and the Custodian shall refuse to
accept for deposit any securities of the same class (within the meaning of Rule
144A(d)(3)(i)) as the securities so listed or quoted, unless the person making
such deposit shall furnish evidence satisfactory to the Depositary, in its sole
discretion, that the securities to be deposited were not, when issued, of the
same class (within the meaning of Rule 144A(d)(3)(i)), as securities so listed
or quoted.
The
Custodian shall refuse to accept Shares for deposit whenever it has been
notified, as provided in the following sentence, that the Company has restricted
transfer of such Shares to comply with the ownership restrictions referred to in
Section 3.04 or that such deposit would result in any violation of applicable
laws. The Company shall notify the Depositary and the Custodian in
writing with respect to any such restrictions on transfer of its Shares or
deposit hereunder.
At the
request, risk and expense of any holder of Shares, and for the account of such
holder, the Depositary may receive Shares to be deposited or evidence that
Shares have been electronically transferred or that irrevocable instructions
have been given to cause the transfer of such Shares to the account of the
Custodian, together with the other orders, instruments and evidence herein
specified, for the purpose of forwarding such orders, instruments and evidence
to the Custodian hereunder.
Upon each
delivery to the Custodian of Shares or other securities to be deposited
hereunder (including deposits by electronic transfer), together with the other
documents above specified, such Custodian shall, as soon as transfer and
recordation can be accomplished, transfer and record the Shares or other
securities being deposited in the name of the Depositary or its Nominee or such
Custodian or its nominee. Deposited Securities shall be held by the
Depositary or by the Custodian for the account and to the order of the
Depositary, the Custodian or Nominee or at such other place or places as the
Depositary shall determine, subject to the applicable laws of
India.
7
The
Nominee may be the Custodian or another entity entitled to act as nominee under
relevant Indian laws and regulations, provided that the Deposited Securities are
kept in a segregated deposit account by the Nominee.
SECTION
2.03. Execution and Delivery of
GDRs. Upon receipt by a Custodian of a deposit pursuant to
Section 2.02 hereunder together with the other certifications specified herein
and, in addition, a proper acknowledgment or other evidence from the Company (or
the appointed agent of the Company for transfer and registration of Shares)
satisfactory to the Depositary that any Deposited Securities are properly
recorded upon the transfer books of the Company (or such agent) maintained for
that purpose in the name of the Depositary or its Nominee or the Custodian or
its nominee, together with the other documents required as above specified, such
Custodian shall notify the Depositary of such deposit and recordation and the
person or persons (i) to whom or upon whose written order a GDR or GDRs in
physical form are deliverable in respect thereof and the number of GDSs to be
evidenced thereby, or (ii) whose DTC participant account should be credited with
Book-Entry GDSs and the number of Book-Entry GDSs to be evidenced on DTC's
records and in the records of the Depositary by the Master GDR with respect to
such deposit. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission.
With
respect to all deposits (other than the Initial Deposit, deposits of Shares
issued in connection with any overallotment rights provided in the Underwriting
Agreement, and deposits made as a result of any distribution pursuant to Section
4.04, any changes to Shares pursuant to Section 4.09 or any similar
distribution), after receiving the notice referred to above from the Custodian,
subject to this Deposit Agreement, the Depositary or its agent shall use
reasonable efforts to obtain from each person acquiring a beneficial interest in
the Master GDR or any GDR to be issued as a result of such deposit evidence
substantially in the form of the certificate annexed hereto as Exhibit C-1 that,
among other things, such person is a Qualified Institutional Buyer or is
acquiring such securities in a transaction in accordance with Regulation
S. If no such certificate or other evidence of the status of such
person satisfactory to the Company, is obtained in connection with any such
subsequent deposit, the Depositary shall not execute or deliver GDRs or
Book-Entry GDSs in respect of such Deposit and shall instruct the Custodian to
take all appropriate action to return the securities so deposited to the person
who deposited such securities.
Promptly
after obtaining the certificate referred to above or such other evidence as the
Company may accept, or, where no such certificate or evidence is required,
promptly after receiving the notification from the Custodian, the Depositary or
its agent shall (i) in the event that (A) such deposit is being made in respect
of Physical GDSs and such deposit is a result of any distribution pursuant to
Section 4.04 or any changes pursuant to Section 4.09, (B) the depositor has
indicated that the beneficial owner desires to hold Physical GDSs, or (C) GDSs
may not be held in global book-entry form at such time pursuant to Section 2.01,
execute and deliver at the Depositary's Principal New York Office or at the
Depositary's Principal London Office to or upon the order of the person or
persons named in such notification, GDRs registered in the name or names
requested by such person or persons, and evidencing in the aggregate the number
of Physical GDSs to which such person or persons are entitled, or (ii) the case
of the Initial Deposit, execute and deliver the Master GDR as provided in
Section 2.02, and in all other cases (x) adjust its records in respect of the
aggregate number of GDSs then outstanding to reflect such deposit and (y) notify
DTC and the relevant DTC participants to adjust the relevant records to credit
the DTC participant accounts entitled to such credit.
8
The
Depositary shall send a confirmation regarding the deposit of such securities
and the issuance of a GDR or GDRs or the increase in the number of Book-Entry
GDSs outstanding and evidenced by the Master GDR to the person or persons to
whom or to whose DTC participant account the GDSs are delivered or credited,
such confirmation to contain a notice with respect to such Shares and GDSs
substantially in the form of the Securities Act Legend and the Indian
Legend.
SECTION
2.04. Transfer of GDRs;
Combination and Split-up of GDRs. The Depositary or its agent,
subject to the terms and conditions of this Agreement and any GDR, shall without
unreasonable delay register transfers of any such GDR on its transfer books,
upon any surrender of such GDR by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice and the accurate completion of the certifications appearing on the
reverse of such GDR relating to compliance with the restrictions on transfer
thereof) and duly stamped as may be required by any applicable law; provided that the
Depositary shall refuse to register any transfer of GDSs if such registration
would cause the total number of Shares represented by GDSs evidenced by GDRs
held by any Holder of such GDRs (other than the Master GDR) to exceed any limit
under applicable law with respect to which the Company has notified the
Depositary in writing. Thereupon, the Depositary shall execute a new
GDR or GDRs and deliver the same to or upon the order of the person entitled
thereto.
The
Depositary, subject to the terms and conditions of this Agreement, shall upon
surrender of a GDR or GDRs for the purpose of effecting a split-up or
combination of such GDR or GDRs, execute and deliver a new GDR or GDRs in the
name of the same Holder for any authorized number of GDSs requested, evidencing
the same aggregate number of GDSs as the GDR or GDRs surrendered. In
connection with any split-up or combination pursuant to this paragraph, the
Depositary shall not be obligated to obtain any certification or endorsement
otherwise required by the terms of this Agreement.
SECTION
2.05. Surrender of GDRs and
Withdrawal of Deposited Securities. Upon:
(1) surrender
of GDSs by (a) delivery at the Depositary's Principal New York Office, the
Depositary's Principal London Office or at such other offices as the Depositary
may designate of a GDR evidencing a Physical GDS (properly endorsed in blank or
accompanied by proper instruments of transfer in blank, to the extent required
by the Depositary), or (b) receipt by the Depositary by electronic transfer from
DTC or a DTC participant to the, Depositary's DTC account of certain GDSs (along
with written instructions from DTC or a DTC participant requesting withdrawal of
Deposited Securities represented by such GDSs on behalf of the Beneficial Owner
of the GDRs which evidence such GDSs ("Withdrawal
Instructions")) and cancellation of such GDSs by debit to such account
and adjustment of the records of the Depositary in respect of the Master
Receipt, in either case for the purpose of withdrawal of the Deposited
Securities represented thereby,
9
(2) payment
of the fees and expenses of the Depositary for the cancellation of GDSs (as set
forth in Exhibit D hereto) and all taxes and other governmental charges payable
in connection with such surrender and withdrawal,
(3) receipt
by the Depositary of certification substantially in the form of Exhibit C-2
annexed hereto (by or on behalf of the beneficial owner of the Deposited
Securities being withdrawn), including an executed version of the Right of First
Refusal Agreement referred to therein (so long as and in such other form as the
Company shall instruct the Depositary in writing to accept), and
(4) subject
to the terms and conditions of this Deposit Agreement, the Holder or Benefical
Owner of the GDRs which evidence such GDSs shall be entitled to physical, or if
available electronic, delivery at the office of the Custodian in Bombay without
unreasonable delay of the applicable Deposited Securities. Withdrawal
Instructions shall be given by letter or, at the request, risk and expense of
the Holder, Beneficial Owner or DTC participant, by cable, telex or facsimile
transmission.
Delivery
of Deposited Securities hereunder in physical form may be made, at the
Depositary's election, by the delivery of (i) certificates registered in the
name of the beneficial owner of the Deposited Securities or (ii) certificates
representing such Deposited Securities properly endorsed or accompanied by
proper instruments of transfer to such beneficial owner. The
Depositary may, in its discretion, at the request, risk and expense of the
Holder or Beneficial Owner, deliver the Deposited Securities to such person or
persons at the Depositary's Principal London Office. The Depositary
may deliver to such person or persons at the Principal London Office of the
Depositary any dividends, distributions or rights with respect to such Deposited
Securities which may at the time be held by the Depositary.
Certificates
representing Deposited Securities withdrawn hereunder shall bear the 45 Day
Legend (if withdrawn before the Transfer Date) and (in the case of Shares) the
Right of First Refusal Legend and may bear the Securities Act Legend and any
other legends or notations not inconsistent with this Deposit Agreement which
are deemed necessary by the Company or the Depositary to comply with applicable
laws.
Without
unreasonable delay, the Depositary shall forward to the Company (by mail or
otherwise as requested, in each case at the Company's risk and expense) the
original executed copy of any Right of First Refusal Agreement received by the
Custodian or the Depositary in connection with any withdrawal
hereunder.
The
Depositary shall not accept surrender of GDRs or Written Instructions for the
purpose of withdrawal of less than one Share. In addition, the
Depositary shall only honor requests for withdrawal of whole numbers of
Shares. In the case of surrender of a GDR or surrender of a
beneficial interest in the Master GDR evidencing a number of GDSs representing
other than whole number of Shares, the Depositary shall cause withdrawal of the
appropriate whole number of Shares as hereinabove provided, and shall execute
and deliver to the person surrendering such GDR a new separate GDR evidencing
GDSs representing any remaining fractional Share or continue to reflect on its
records the remaining fractional Shares as being represented by GDSs evidenced
by the Master GDR.
10
SECTION
2.06. Limitations on Execution and
Delivery, Transfer, etc. of GDRs; Suspension of Delivery, Transfer,
etc. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender of any GDR for the
purpose of withdrawal of any Deposited Securities or adjustment to the
Depositary's records in order to reflect deposits of Shares or such transfer,
surrender or withdrawal, the Depositary or the Custodian may require (i) payment
from the depositor of Shares or the presenter of a GDR or the presenter of
written instructions, of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as herein provided,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with this Agreement,
including but not limited to, in the case of GDRs, a signature guarantee in
accordance with industry practice, and (iii) compliance with any laws or
governmental regulations relating to depositary receipts in general or to the
withdrawal of Deposited Securities.
After
consultation with the Company, the delivery of GDRs against, or adjustments in
the records of the Depositary to reflect, deposits of Shares generally or of
particular Shares may be suspended or withheld, or the registration of transfer
of GDRs in particular instances may be refused, or the registration of transfer
generally may be suspended, or the surrender of outstanding GDRs or the receipt
of Withdrawal Instructions from any person having a beneficial interest in
Book-Entry GDSs represented by the Master GDR for the purpose of withdrawal of
Deposited Securities may be suspended, during any period when the transfer books
of the Depositary or the Company (or the appointed agent of the Company for the
transfer and registration of Shares) are closed, or if any such action is deemed
necessary or advisable by the Company or the Depositary, in good faith, at any
time or from time to time.
SECTION
2.07. Lost GDRs,
etc. In case any GDR shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new GDR of like tenor and
registered in the same name, in exchange and substitution for such mutilated GDR
upon cancellation thereof, or in lieu of and in substitution for such destroyed,
lost or stolen GDR, upon the filing by the Holder thereof with the Depositary of
(a) a request for such exchange, execution and delivery before the Depositary
has notice that the GDR has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond, and upon satisfying any other reasonable requirements
imposed by the Depositary.
SECTION
2.08. Cancellation and Destruction
of Surrendered GDRs. All GDRs surrendered to the Depositary
shall be cancelled by the Depositary. Cancelled GDRs shall not be
entitled to any benefits under this Agreement or be valid or obligatory for any
purpose. The Depositary is authorized to destroy surrendered GDRs so
cancelled. GDSs shall be deemed cancelled when the Deposited
Securities they represent are withdrawn from deposit hereunder or when the
number of GDSs evidenced by the Master GDR on the records of the Depositary is
so reduced and no other GDR evidencing such GDSs is issued
hereunder.
11
SECTION
2.09. Interchangeability of
Book-Entry GDSs and Separate GDR Certificates. Subject to the
terms and conditions of this Agreement, upon receipt by the Depositary at its
Principal New York Office of written instructions from DTC or its nominee on
behalf of any person having a beneficial interest in Book-Entry GDSs evidenced
by the Master GDR for the purpose of directing the Depositary to execute and
deliver a separate GDR evidencing such GDSs, and upon receipt by the Depositary
at its Principal New York Office or Principal London Office of a written order
of such person containing registration instructions and such other information
as the Depositary may require in order to execute and deliver such separate GDR,
and together with fully completed, signed certification in substantially the
form attached hereto as Exhibit C-3, and upon payment of the fees and expenses
of the Depositary, the Depositary shall follow the procedures set forth in
paragraph 7 of the Letter of Representations attached hereto as Exhibit A for
the purpose of reducing the number of Book-Entry GDSs evidenced by the Master
GDR and, following such reduction, shall execute and deliver at its Principal
New York Office or Principal London Office to or upon the order of the person or
persons named in such order a GDR or GDRs registered in the name or names
requested by such person and evidencing in the aggregate the number of GDSs
equal to the reduction in the number evidenced by the Master GDR.
Subject
to the terms and conditions of this Agreement, upon receipt by the Depositary at
its Principal New York Office or Principal London Office of a separate GDR or
GDRs, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Depositary, together with fully completed, signed
certification in substantially the form attached hereto as Exhibit C-4, and
together with written instructions directing the Depositary to adjust its
records to reflect an increase in the aggregate amount of Book-Entry GDSs
evidenced by the Master GDR (including, without limitation, information
regarding the DTC participant account to be credited with such increase), and
upon payment of the fees and expenses of the Depositary, the Depositary shall
cancel such separate GDR or GDRs and shall follow the procedures set forth in
paragraph 6 of the Letter of Representations attached hereto as Exhibit A for
the purpose of reflecting such increase in the number of Book-Entry GDSs
evidenced by the Master GDR.
SECTION
2.10. Maintenance of
Records. The Depositary agrees to maintain records of all GDRs
surrendered and Deposited Securities withdrawn under Section 2.05, of substitute
GDRs delivered under Section 2.07, of GDRs cancelled or destroyed under Section
2.08 or 2,09, and of GDRs executed and delivered in physical, certificated form
under Section 2.09, in keeping with procedures ordinarily followed by stock
transfer agents located in The City of New York.
ARTICLE
III
CERTAIN OBLIGATIONS OF
HOLDERS OF GDRs
SECTION
3.01. Filing Proofs, Certificates
and Other Information. Any person depositing Shares, any
Holder or any Beneficial Owner may be required from time to time to file with
the Depositary or the Custodian such proof of citizenship, residence, exchange
control approval, payment of applicable Indian or other taxes or governmental
charges, or legal or beneficial ownership and the nature of such interest, to
provide information relating to the registration on the books of the Company (or
the appointed agent of the Company for the transfer and registration of Shares)
of the Shares or other securities presented for deposit or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may deem necessary or proper to enable the Depositary
or the Company to perform its obligations hereunder. The Depositary
may withhold the execution or delivery or registration of transfer of all or
part of any GDR or the distribution or sale of any dividend or other
distribution of rights or of the proceeds thereof or the withdrawal of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties are
made. The Depositary shall provide the Company, in a timely manner,
with copies of any such proofs and certificates and such written representations
and warranties provided as aforesaid.
12
SECTION
3.02. Liability of Holders and
Beneficial Owners for Taxes and Other Charges. If any Indian
or other tax or governmental charge shall become payable with respect to any GDR
or any Deposited Securities represented by the GDSs evidenced by any GDR, such
tax or other governmental charge shall be payable by the Holder of such GDR to
the Depositary and any Beneficial Owner of such GDR shall be liable to the
Holder therefor. The Depositary may, and upon the instructions of the
Company shall, refuse to effect any registration of transfer of all or part of
such GDR or any withdrawal of Deposited Securities represented by the GDSs
evidenced thereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder thereof any part
or all of the Deposited Securities represented by the GDSs evidenced by such
GDR, and may apply such dividends or other distributions or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder and
the Beneficial Owners of such GDR remaining liable for any
deficiency.
SECTION
3.03. Representations, Warranties
and Agreements on Deposit, Transfer and Surrender and Withdrawal of Shares or
GDRs. Each person depositing Shares under this Agreement shall
be deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, outstanding, fully paid and non-assessable and not
subject to any claim in respect of preemptive rights, and that the person making
such deposit is duly authorized so to do. Such representations and
warranties shall survive the deposit of Shares and the issuance of GDRs or
adjustments in the Depositary's records in respect thereof.
Each
person acquiring a beneficial interest in any GDS (whether by purchase in the
initial offering of the GDSs, by subsequent transfer, upon issuance by the
Depositary or otherwise) shall be deemed thereby to:
(A) (1)
represent that either (i) it is acquiring such interest for its own account or
an account of another entity and that it or such entity is a QIB or (ii) it is
outside the United States or is a United States professional fiduciary acquiring
such interest on a discretionary basis for the benefit or account of a person
other than a U.S. person, (2) represent that it is not located in India and is
not a resident of India or purchasing for, or for the account or benefit of, a
resident of India, (3) acknowledge that the GDRs, the GDSs and the Deposited
Securities represented by the GDSs have not been, and will not be, registered
under the Securities Act and may not be offered, sold, pledged or otherwise
transferred except in compliance with the Securities Act Legend, (4) acknowledge
that the GDRs and GDSs may not be offered or sold directly or indirectly to any
person in India or to, or for the account or benefit of, a resident of India,
(5) agree that if it should offer, sell, transfer or otherwise dispose of the
GDRs, the GDSs or the underlying Deposited Securities or any beneficial interest
therein, it will do so only as permitted by the applicable legends and, if
applicable, the Right of First Refusal Agreement, and in each case will give the
purchaser notice of any restrictions on resale of the GDRs, GDSs and Deposited
Securities, (6) acknowledge that, unless otherwise agreed by the Company and the
Depositary, the GDRs and each Share withdrawn from the depositary facility will
bear the Securities Act Legend, (7) acknowledge that the GDRs will bear the
Indian Legend, (8) acknowledge that Shares withdrawn from the depositary
facility before the Transfer Date will bear the 45 Day Legend, (9) understand
and agree that as a condition to the withdrawal of Shares from the depositary
facility, the beneficial owner of such Shares will be required to enter into a
Right of First Refusal Agreement and (10) agree that it will not transfer before
the Transfer Date any Deposited Security, and
13
(B) represent
and warrant that such receipt, transfer or surrender and withdrawal complies
with such restrictions. Such representations, warranties and
agreements shall survive any such receipt, transfer or surrender and
withdrawal.
SECTION
3.04. Ownership
Restrictions. The Company may restrict transfers of Shares or
GDSs where such transfer might result in ownership of Shares exceeding the
limits under applicable law, The Company may, in its sole discretion, instruct
the Depositary to take action with respect to the beneficial ownership of Shares
by any Holder or Beneficial Owner in excess of any limitation as per the
preceding sentence, including but not limited to a mandatory sale or disposition
on behalf of a Holder or Beneficial Owner of the Shares represented by the GDSs
held by such Holder or Beneficial Owner in excess of such limitations, if and to
the extent such disposition is permitted by applicable law.
SECTION
3.05. Disclosure of
Interests. To the extent that provisions of or governing any
Deposited Securities or the rules or regulations of any governmental authority
require the disclosure to the Company or other persons of the beneficial or
other ownership of Deposited Securities, other Shares and other securities, the
Depositary shall use its reasonable efforts to comply with such provisions,
rules or regulations and with Company instructions in respect thereof, and
Holders and Beneficial Owners shall comply with all such disclosure requirements
and any related ownership limitations and shall cooperate with the Depositary's
compliance with such provisions, rules or regulations and with such Company
instructions.
ARTICLE
IV
RIGHTS
RELATING TO THE DEPOSITED SECURITIES;
CERTAIN OBLIGATIONS OF THE
DEPOSITARY
SECTION
4.01. Power of
Attorney. Each Holder and Beneficial Owner, upon acceptance of
a GDR issued in accordance with the terms hereof or any beneficial interest
therein, thereby appoints the Depositary its attorney-in-fact, with full power
to delegate, to act on its behalf and to take any and all steps or action
provided for or contemplated herein with respect to the Deposited Securities,
including but not limited to those set forth in Article IV, and to take such
further steps or action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this
Agreement.
14
SECTION
4.02. Cash Distributions;
Withholding. Whenever the Custodian or the Depositary receives
any cash dividend or other cash distribution in respect of any Deposited
Securities, the Depositary shall, subject to the provisions of Section 4.06,
cause such dividend or distribution to be converted into dollars and remitted to
the Depositary, and shall promptly distribute the amount thus received to the
Holders entitled thereto in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, after deduction or upon payment
of the fees and expenses of the Depositary; provided, however, that in the
event that the Company, the Custodian or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holders in respect of the
GDSs representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders of GDRs
then outstanding. The Company or its agent, or the Depositary or its
agent, as appropriate, will remit to the appropriate governmental authority or
agency in India or any other relevant jurisdiction all amounts withheld and
owing to such authority or agency. The Depositary will forward to the
Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental authorities or agencies.
SECTION
4.03. Distributions Other than
Cash, Shares or Rights. Whenever the Custodian shall receive
any distribution other than cash, Shares or rights upon any Deposited
Securities, the Depositary shall cause the securities or property received by
the Custodian to be distributed to the Holders entitled thereto, after deduction
or upon payment of the fees and expenses of the Depositary, in proportion to the
number of GDSs representing such Deposited Securities held by them respectively,
in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in
the opinion of the Depositary it cannot cause such securities or property to be
distributed or such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including any requirement
that the Company, the Custodian or the Depositary withhold an amount on account
of taxes or other governmental charges or that such securities must be
registered under the Securities Act in order to be distributed to Holders) the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private sale) of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale shall be distributed by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash; provided that any
unsold balance of such securities or property shall be distributed by the
Depositary to the Holders entitled thereto, if such distribution is feasible
without withholding for or on account of any taxes or other governmental charges
and without registration under the Securities Act, in accordance with such
equitable and practicable method as the Depositary shall have
adopted.
15
SECTION
4.04. Distributions in
Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Depositary may,
with the Company's approval, and shall, if the Company shall so request, either
(i) distribute to the Holders of Physical GDSs entitled thereto, in proportion
to the number of GDSs representing such Deposited Securities held by them
respectively, additional GDRs for an aggregate number of GDSs representing the
number of Shares received as such dividend or free distribution, or (ii) reflect
on the records of the Depositary such increase in the aggregate number of GDSs
representing such Shares, in either case after deduction or upon payment of the
fees and expenses of the Depositary; provided, however, that if for
any reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or other governmental charges or that
such Shares must be registered under the Securities Act in order to be
distributed to Holders) the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the Shares thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Holders entitled thereto as in the case of a distribution received in
cash. In lieu of issuing GDRs for fractional GDSs in any such case,
the Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the net proceeds in dollars, all in the manner and
subject to the conditions described in Section 4.02. If additional
GDRs are not so distributed (except pursuant to the preceding sentence), or such
change in the records of the Depositary is not made, each GDS shall thenceforth
also represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION
4.05. Rights. In
the event that the Company shall offer or cause to be offered to the holders of
any Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary, after consultation with the Company,
shall have discretion as to the procedure to be followed in making such rights
available to the Holders entitled thereto, subject to Section 5.09, or in
disposing of such rights on behalf of such Holders and making the net proceeds
available in cash to such Holders or, if by the terms of such rights offering or
by reason of applicable law, the Depositary may neither make such rights
available to such Holders nor dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse;
provided, however, that the
Depositary will, if requested by the Company, take action as
follows:
(i) if at the
time of the offering of any rights the Depositary determines that it is lawful
and feasible to make such rights available to all or certain Holders or
Beneficial Owners by means of warrants or otherwise, the Depositary shall, after
deduction or upon payment of the fees and expenses of the Depositary, distribute
warrants or other instruments therefor in such form as it may determine to such
Holders entitled thereto, in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, or employ such other method as
it may deem feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders or the sale or resale of securities obtainable upon
exercise of such rights by such Holders or Beneficial Owners; or
(ii) if at the
time of the offering of any rights the Depositary determines that it is not
lawful or not feasible to make such rights available to certain Holders or
Beneficial Owners by means of warrants or otherwise, or if the rights
represented by such warrants or such other instruments are not exercised and
appear to be about to lapse, the Depositary shall use its reasonable efforts to
sell such rights or such warrants or other instruments at public or private
sales, at such place or places and upon such terms as it may deem proper, and,
after deduction or upon payment of the fees and expenses of the Depositary,
allocate the net proceeds of such sales for the account of the Holders otherwise
entitled to such rights, warrants or other instruments upon an averaged or other
practicable basis without regard to any distinctions among such Holders because
of exchange restrictions or the date of delivery of any GDR or GDRs, or
otherwise; or
16
(iii) if at the
time of the offering of any rights the Depositary determines that it is lawful
and feasible, it may, in its discretion, after deduction or upon payment of the
fees and expenses of the Depositary, and upon provision of any documents,
statements or certification that it may specify, take such action as is
necessary for certain of the rights to be exercised and the securities obtained
upon the exercise thereof to be sold under Regulation S or to be resold under
Rule 144A to, or privately placed with, those Holders or Beneficial Owners to
whom such sales or resales may be made or with whom such private placement may
be made without the rights or the securities to which such rights relate being
registered under the Securities Act.
Any
Shares obtained by the Depositary through the exercise of rights to subscribe
will be deposited pursuant to Section 2.02 hereof by the Depositary, as agent
for the Holders or Beneficial Owners, and, upon receipt of appropriate
certifications as required by Section 2.03, GDRs evidencing additional GDSs
representing the Shares so deposited will be distributed to the relevant Holders
or reflected on the books of the Depositary.
If
registration under the Securities Act or any other applicable law of the rights
or the securities to which any rights relate is required in order for such
rights to be offered to Holders or to sell to them the securities to which such
rights relate, the Depositary will not offer such rights to the Holders unless
and until a registration statement is in effect or unless the offering and sale
of such rights or securities to the Holders are exempt from registration under
the provisions of such Act or other law. The Company shall have no
obligation to register such rights or such securities under the Securities Act
or any other applicable laws.
Notwithstanding
the foregoing, it is agreed that if, by their terms, any rights offered to the
holders of Deposited Securities may be sold or otherwise transferred, the
Depositary shall not sell or transfer any such rights offered in respect of the
Deposited Securities without first offering such rights to the Company for its
designees to purchase in accordance with the Right of First Refusal (as defined
below), and further the Depositary shall not make such rights available to any
Holders or Beneficial Owners pursuant to clause (i) above except on terms which
require compliance with the Right of First Refusal with respect to such
rights. As used herein, the term "Right of First
Refusal" shall mean the right of first refusal procedures set forth in
the form of Right of First Refusal Agreement appearing in Exhibit C-2 hereto,
provided that for the purposes of this section, the term "undersigned" shall
refer to the Depositary, and the term "Offered Shares" shall refer to the rights
proposed to be transferred. For the avoidance of doubt, the source of
information used to determine the Transfer Price with respect to any rights
shall be agreed by the Depositary and the Company before the Company offers any
such rights to holders of Deposited Securities or of any securities of the same
class.
17
SECTION
4.06. Conversion of Foreign
Currency. Whenever the Custodian or Depositary receives
currency other than dollars (in this Section referred to as "foreign currency")
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis (to the extent permitted by law, at market rates
prevailing in India rather than at official rates) into dollars which can, at
the time of receipt thereof be transferred to the United States and distributed
to the Holders entitled thereto, the Depositary shall promptly convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into dollars, and such dollars (less any reasonable and
customary expenses incurred by the Depositary in the conversion of the foreign
currency) shall be distributed to the Holders entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution shall be made upon an averaged or
other practicable basis without regard to any distinctions among Holders on
account of any application of exchange restrictions or otherwise.
If such
conversion with regard to a particular Holder or distribution can be effected
only with the approval or license of any government or agency thereof, the
Depositary shall file such application for approval or license, if any, as it
may deem desirable.
If at any
time the Depositary determines that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into dollars
distributable to the Holders entitled thereto, or if any approval or license of
any government or authority or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or any appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency for the respective accounts of, the Holders entitled to receive
the same.
If any
such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some Holders entitled thereto, the Depositary may in its
discretion make such conversion and distribution in dollars to the extent
permissible to the Holders for whom such conversion and distribution is
practicable and may distribute the balance of the foreign currency received by
the Depositary to, or hold such balance for the respective accounts of, the
Holders for whom such conversion and distribution is not
practicable.
SECTION
4.07. Fixing of Record
Date. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued, with respect to the Deposited Securities, or
whenever, for any reason, the Depositary causes a change in the number of Shares
that are represented by each GDS or whenever the Depositary shall receive notice
of any meeting of holders of Shares or other Deposited Securities, the
Depositary shall fix a record date after consultation with the Company (which
shall be as near as practicable to the corresponding record date for such
distribution or meeting set by the Company) for the determination of the
effectiveness of such change in the number of Shares represented by such GDS or
of Holders who shall be entitled to receive such dividend, distribution or
rights, or the net proceeds of the sale thereof, or to receive information as to
such meeting. Subject to the provisions of Section 4.02 through 4.07
and to the other terms and conditions of this Agreement, the Holders on such
record date shall be entitled to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof or, to exercise the rights of Holders hereunder
with respect to such changed number of Shares represented by each GDS, in
proportion to the number of GDSs held by them respectively.
18
SECTION
4.08. Voting of Deposited
Securities.
HOLDERS
OF GDRs MAY NOT VOTE THE SHARES OR OTHER DEPOSITED SECURITIES REPRESENTED BY THE
GDSs EVI-
[PAGE
28 MISSING FROM MASTER]
the Board
of Directors in writing from time to time as being members of the Birla
Group.
Notwithstanding
the foregoing, the Depositary agrees that, upon the written request of the Board
of Directors of the Company and unless otherwise advised by legal counsel, it
shall exercise any voting rights in respect of Deposited Securities to vote in
favor of amendments to the Company's Articles of Association the sole purpose of
which is to give effect to the provisions of this Section 4.08.
SECTION
4.09. Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation of the Company or sale
of assets by the Company, any securities which shall be received by the
Depositary or the Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall be treated as new Deposited Securities, and the GDSs
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional or new GDSs are delivered pursuant to the
following sentence. In any such case the Depositary may, with the
Company's approval, and shall, at the Company's request, execute and deliver
additional GDRs to Holders of Physical GDSs and make appropriate adjustments in
its records on behalf of Holders of GDSs in the Master GDR, as in the case of a
stock dividend, bonus issue or other free distribution in Shares, or call for
the surrender of outstanding GDRs to be exchanged for new GDRs specifically
describing such new Deposited Securities.
Immediately
upon the occurrence of any such change, conversion or exchange covered by this
Section in respect of the Deposited Securities, the Depositary shall give notice
thereof in writing, at the Company's expense, to all Holders.
SECTION
4.10. Transmittal by the
Depositary of Company Notices, Reports and Communications. The
Depositary shall make available for inspection by Holders at its Principal New
York Office and Principal London Office and at the office of each Custodian
copies of this Agreement, any notices, reports or communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary or a Custodian or the nominee of either, as the
holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary
shall also send to Holders copies of such notices, reports and communications
when furnished by the Company to the Depositary pursuant to Section
5.08.
19
SECTION
4.11. Withholding. Notwithstanding
any other provision of this Agreement, in the event that the Depositary
determines that any distribution of property (including Shares, rights to
subscribe therefor and other securities) is subject to any tax or governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares, rights to
subscribe therefor and other securities) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or governmental
charges, including by public or private sale, and the Depositary shall
distribute the net proceeds of any such sale or the balance of any such property
after deduction of such taxes or governmental charges to the Holders entitled
thereto in proportion to the number of GDRs held by them respectively and the
Depositary shall, if feasible without withholding for or on account of taxes or
other governmental charges, without registration of such Shares or other
securities under the Securities Act and otherwise in compliance with applicable
law, distribute any unsold balance of such property in accordance with the
provisions of this Agreement.
The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies.
Notwithstanding
any other provision of this Agreement, before making any distribution or other
payment on any Deposited Securities, the Company shall make such deductions (if
any) which, by the laws of India, the Company is required to make in respect of
any income, capital gains or other taxes and the Company may also deduct the
amount of any tax or governmental charges payable by the Company or for which
the Company might be made liable in respect of such distribution or other
payment or any document signed in connection therewith.
SECTION
4.12. Available
Information. The Company intends to furnish the Commission
with certain public reports and documents required by the laws of India, the
rules of any securities exchange on which any securities of the Company are
listed or otherwise, in accordance with Rule 12g3-2(b) of the Securities
Exchange Act. Should the Company become subject to additional
informational requirements, it shall in accordance therewith file reports and
other information with the Commission. If, at any time, the Company
is neither subject to Section 13 or 15(d) of the Securities Exchange Act nor
exempt from reporting pursuant to Rule 12g3-2(b) of the Securities Exchange
Act, the Company hereby undertakes to provide to any Holder or Beneficial Owner
and any prospective purchaser designated by a Holder or Beneficial Owner, upon
the request of such Holder, Beneficial Owner or prospective purchaser, copies of
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to permit compliance with Rule 144A in connection with resales of
GDSs.
The
Company hereby authorizes and directs the Depositary to deliver such
information, during any period in which the Company informs the Depositary it is
subject to the information delivery requirements of Rule 144(d)(4), to any such
Holder, Beneficial Owner or prospective purchaser at the request of such Holder
or Beneficial Owner. The Company agrees to reimburse the Depositary
for its reasonable expenses in connection with such deliveries and to provide
the Depositary with such information in such quantities as the Depositary may
from time to time reasonably request.
20
ARTICLE
V
THE DEPOSITARY, THE
CUSTODIAN AND THE COMPANY
SECTION
5.01. Maintenance of Office and
Transfer Books by the Depositary. Until termination of this
Agreement in accordance with its terms, the Depositary shall maintain in the
Borough of Manhattan, The City of New York, facilities for the execution and
delivery, registration, registration of transfers and surrender of GDRs in
accordance with the provisions of this Agreement.
The
Depositary shall keep books at its Principal New York Office for the
registration of GDRs and transfers of GDRs which at all reasonable times shall
be open for inspection by Holders and the Company, provided that such inspection
shall not to the Depositary's knowledge be for the purpose of communicating with
Holders in the interest of a business or object other than the business of the
Company or matter related to this Agreement or the GDRs.
After
consultation with the Company, the Depositary may close the transfer books, at
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder.
If any
GDSs are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or, with the approval
of the Company, appoint a Registrar or one or more co-registrars for
registration of such GDSs in accordance with any requirements of such exchange
or exchanges or system or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary upon
the request or with the approval of the Company.
SECTION
5.02. List of
Holders. Promptly upon request by the Company not more than 30
days before an Annual General Meeting of the Shareholders of the Company, the
Depositary shall furnish to the Company a list, as of a recent date, of the
names, addresses and holdings of GDSs by all persons in whose names GDRs are
registered on the books of the Depositary.
SECTION
5.03. Obligations of the
Depositary, the Custodian and the Company. The Company assumes
no obligation nor shall it be subject to any liability under this Agreement to
Holders or Beneficial Owners, except that it agrees to use its best judgment and
to act in good faith in the performance of its obligations set forth in this
Agreement.
The
Depositary assumes no obligation nor shall it be subject to any liability under
this Agreement to Holders or Beneficial Owners (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that it agrees to use its best judgment and to act in good faith in the
performance of its duties set forth in this Agreement. The Depositary
will not hold the Deposited Securities in trust for, and is not acting hereunder
as trustee on behalf of, the Holders and Beneficial Owners.
21
The
Depositary and the Company undertake to perform such duties and only such duties
as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Depositary or the
Company.
Neither
the Depositary nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the GDRs, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required, and no Custodian
shall be under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary.
Neither
the Depositary nor the Company shall be liable for any action or inaction by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or Beneficial Owner, or any
other person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents and the Company and its
agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
SECTION
5.04. Prevention or Delay in
Performance by the Depositary or the Company. Neither the
Depositary nor the Company shall incur any liability to any Holder or Beneficial
Owner, if by reason of any provision of any present or future law of the United
States, India or any other country or jurisdiction, or of any other governmental
authority, or by reason of any provision, present or future, of the Memorandum
or Articles of Association of the Company, or by reason of any act of God or war
or other circumstances beyond its control, the Depositary, the Custodian or the
Company is prevented, delayed or forbidden from doing or performing any act or
thing which by the terms of this Agreement it is provided shall be done or
performed; nor shall the Depositary, the Custodian or the Company incur any
liability to any Holder or Beneficial Owner by reason of any non-performance or
delay, caused as aforesaid, in performance of any act or thing which by the
terms of this Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Agreement. Where, by the terms of a distribution pursuant to
Section 4.02, 4.03 or 4.04 of this Agreement or an offering or distribution
pursuant to Section 4.05 or 4.06 of this Agreement, or because of applicable
law, such distribution or offering may not be made available to Holders, and the
Depositary may not dispose of such distribution or offering on behalf of such
Holders and make the net proceeds available to such Holders, then the Depositary
may make no such distribution or offering, and may allow any rights, if
applicable, to lapse.
SECTION
5.05. Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder by 30 days' written
notice of such election delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by 30 days' written notice
of such removal which shall become effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
22
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
The City of New York. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the company, shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor, and
shall deliver to such successor a list of the Holders of all outstanding GDRs
and such other books and records maintained by such predecessor with respect to
its function as Depositary hereunder. Any such successor depositary
shall at its own cost promptly mail notice of its appointment to the
Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION
5.06. Charges of
Depositary. The expenses, fees or charges of the Depositary
and the Registrar, if any, shall be paid by the Company only as provided
herein. Beneficial Owners, Holders beneficially owning GDRs agree to
pay, as appropriate, (1) the fees of the Depositary for the surrender of GDRs
pursuant to Section 2.05, the exchange of Book-Entry GDSs for a physical GDR
certificate or the exchange of a physical GDR certificate for a Book-Entry GDS
pursuant to Section 2.09 and the distribution of dividends and sale or exercise
of rights or other corporate action involving distributions in respect of
Deposited Securities, each as provided in Exhibit D hereto, (2) taxes and other
governmental charges (including stamp duty), (3) such registration fees as may
from time to time be in effect for the registration of transfers of Shares
generally on the register of the Company maintained for that purpose and
accordingly applicable to transfers of Shares to or from the name of the
Depositary or its Nominee or a Custodian or its nominee on the making of
deposits pursuant to Section 2.02 or a withdrawal pursuant to Section 2.05, (4)
such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in this Agreement to be at the expense of Holders and (5)
such reasonable expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.05.
Any other
charges and expenses of the Depositary hereunder and the Registrar (if any)
(other than the charges and expenses of the Custodian, the Nominee or any other
agent of the Depositary) will be paid by the Company after consultation and
agreement and in accordance with agreements in writing entered into between the
Depositary and the Company as to the amount and nature of such charges and
expenses. Such charges may at any time and from time to time be
changed by agreement between the Company and the Depositary. Unless
otherwise agree, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The
charges and expenses of the Custodian, the Nominee or any other agent of the
Depositary are for the sole account of the Depositary.
23
SECTION
5.07. The
Custodian. The Depositary, after consultation with the
Company, shall from time to time appoint one or more agents to act for it as
Custodian hereunder. The depositary has initially appointed Citibank,
N.A. (Bombay Branch) as custodian and agent of the Depositary for the purpose of
this Agreement. The Custodian in acting hereunder shall be subject at
all times and in all respects to the direction of the Depositary and shall be
responsible solely to it. The Custodian may resign and be discharged
from its duties hereunder by 30 days' prior notice of its election to do so
delivered to the Depositary; such resignation to take effect upon the
appointment of a successor Custodian and its acceptance of such appointment as
hereinafter provided. If upon such notice of resignation there shall
be no Custodian acting hereunder, the Depositary shall, promptly after receiving
such notice and after consultation with the Company, appoint a substitute
custodian which shall thereafter be the Custodian hereunder. The
Depositary, after consultation with the Company, when it reasonably appears to
be in the best interest of the Holder to do so, may appoint a substitute or an
additional custodian, which shall thereafter be a Custodian
hereunder. Forthwith upon its appointment, each such substitute or
additional custodian shall deliver to the Depositary an acceptance of such
appointment satisfactory in form and substance to the
Depositary. Immediately upon any change, the Depositary shall at its
own expense give notice thereof in writing to all Holders. Upon
demand of the Depositary, any Custodian shall deliver such of the Deposited
Securities as are requested of it to any other Custodian together with all
records maintained by it as Custodian with respect to such Deposited
Securities.
Upon the
appointment of any successor depositary hereunder, any Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder; but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION
5.08. Notices, Reports and
Communications. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or of other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company agrees to transmit to the Depositary sufficient copies of the notice
thereof in the form given or to be given to holders of Shares or of other
Deposited Securities.
The
Company, at the Company's expense, shall also arrange for the prompt transmittal
to the Depositary of sufficient copies of (i) the Company's annual report
containing a description of operations and the Company's annual financial
statements and (ii) any other notices, reports and communications that are made
generally available by the Company to holders of Shares. The
Depositary shall arrange at the Company's expense for prompt mailing of copies
thereof to all Holders, and, at the reasonable request and at the expense of the
Company, shall also make such notices, reports and communications available to
all Holders in the same manner as the Company makes them generally available to
holders of Shares or on such other basis as the Company may advise the
Depositary as being required by any law or regulation or any requirement of any
stock exchange to which the Company may be subject, subject to any limitations
imposed by U.S. law. The Depositary may, at the Company's expense,
obtain English translations of any notices, reports or communications from the
Company which are not initially furnished to the Depositary in English
text. The Depositary will make all notices, reports and
communications received by it available for inspection by Holders at its
Principal New York Office and its Principal London Office.
24
Additionally,
the Company agrees that if, and so long as, the GDSs are listed on the
Luxembourg Stock Exchange and if, and so long as, required by the rules or
regulations of such stock exchange, the Company will publish or distribute
notices, as required by such stock exchange.
SECTION
5.09. Issuance of Additional
Shares, etc. In the event of any issuance of additional Shares
or of other securities (including rights and convertible or exchangeable
securities) as a dividend or distribution with respect to the Shares or other
Deposited Securities represented by GDSs, or future issuances to Holders for
cash of such additional Shares or such other securities, the Depositary shall
not distribute any such additional Shares or other securities to the Holders
unless the Depositary shall have received a written opinion from counsel in the
United States, which counsel shall be satisfactory to the Depositary and the
Company, at the cost of the Company, stating whether or not the circumstances of
such issue are such as to make it necessary for a registration statement under
the Securities Act to be in effect prior to making such dividend or distribution
available to the Holder entitled thereto and, if in the opinion of such counsel
a registration statement is required, stating that there is a registration
statement in effect which will cover the issuance of such
securities.
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ shall be deemed counsel satisfactory to both the
Depositary and the Company for all purposes of this Section 5.09.
The
Company agrees that in the event of any future issuances of (a) additional
Shares, (b) rights, preferences or privileges to subscribe for Shares, (c)
securities convertible into or exchangeable for Shares, or (d) rights,
preferences or privileges to subscribe for securities convertible into or
exchangeable for Shares (in each event other than as a dividend or distribution,
or issuance for cash to Holders, in each such case as set forth above), such
issuance shall be effected by the Company in a manner so as not to violate the
Securities Act. If the Company determines that an issuance of such
securities is required to be registered under the Securities Act, the Company
shall take one of the following actions: (x) register such issuance
to the extent necessary, (y) alter the terms of the issuance to avoid the
registration requirements of the Securities Act or (z) direct the Depositary or
the Custodian to take such measures as are provided in Section 4.03 through 4.05
or other specific measures with respect to the acceptance for deposit of Shares
to prevent such issuance from being made in violation of the registration
requirements of such Act.
The
Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Shares hereunder, either
upon original issuance or upon a sale of Shares previously issued and reacquired
by the Company or by any company under its control, unless such transaction is
registered under the Securities Act or is not required to be registered under
the Securities Act as confirmed by an opinion of U.S. counsel.
SECTION
5.10. Indemnification. The
Company agrees to indemnify the Depositary and each Custodian against, and hold
each of them harmless from, any liability or expense which may arise out of acts
performed or omitted, including but not limited to any delivery by the
Depositary on behalf of the Company of information regarding the Company, in
accordance with the provisions of this Agreement and of the GDRs, as the same
may be amended, modified or supplemented from time to time, in any such case,
(i) by either the Depositary or any Custodian, except for any lability or
expense arising out of the gross negligence or willful misconduct of either of
them, or (ii) by the Company or any of its agents, except to the extent that
such liability or expense arises out of information relating to the Depositary
or to the Custodian, as the case may be, furnished in a signed writing to the
Company by the Depositary expressly for use in any document relating to the GDRs
evidencing the GDSs.
The
Depositary agrees to indemnify the Company and hold it harmless from any
liability or expense which may arise out of acts performed or omitted by the
Depositary or its Custodian or any of their agents due to the gross negligence
or willful misconduct of either the Depositary or the Custodian or any of their
agents.
25
Any
person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the "indemnifying Person")
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which defense shall be reasonable under the
circumstances. No indemnified person shall compromise or settle any
action or claim without the consent of the indemnifying person.
The
obligations set forth in this Section 5.10 shall survive the termination of this
Agreement and the succession or substitution of any person indemnified
hereby.
SECTION
5.11. Certain Rights of the
Depositary; Limitations. Subject to this Section and the
provisions of Section 3.04, the Depositary and its agents may own and deal in
any class of securities of the Company and its affiliates and in
GDSs. The Depositary may issue GDSs against rights to receive Shares
from the Company, or any custodian, Registrar, transfer agent, clearing agency
or other entity involved in ownership or transaction records in respect of the
Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. The Depositary shall not lend Shares or GDSs; provided, however, that, to the
extent permitted by applicable by Indian law, the Depositary reserves to the
right to issue GDSs prior to the receipt of Shares pursuant to Section 2.02
(each such issuance being called a "Pre-Release"); and
further provided, however, that the
Depositary shall not execute any Pre-Release (i) prior to the Transfer Date,
(ii) unless it has received all necessary approvals of the Government of India
and (iii) unless it has received the Company's consent. The
Depositary will not Pre-Release any GDSs unless (a) it has received a written
representation from the person to whom the GDSs are to be delivered that such
person, or its customers, owns the Shares to be remitted in respect of which
such GDSs are issued (or such evidence of ownership of Shares as the Depositary
deems appropriate) and such person agrees to indicate the Depositary as the
owner of the Shares on its records and unconditionally guarantees to deliver the
Shares to the Depositary, (b) such Pre-Release is at all times fully
collateralized with cash, United States Government securities or such other
collateral of comparable safety and liquidity, (c) such Pre-Release is
terminable by the Depositary on not more than five (5) business days' notice,
and (d) such Pre-Release is subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of Pre-Released GDSs at any one time to thirty percent
(30%) of the GDSs outstanding (without giving effect to Pre-Released GDSs);
provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary will also set limits
with respect to the number of GDSs involved in transactions to be effected
hereunder with any one person on a case by case basis as it deems
appropriate.
26
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing, including without limitation earnings on the
collateral. Such collateral, but not the earnings thereon, shall be
held for the benefit of the Holders only. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision of this
Agreement.
ARTICLE
VI
AMENDMENT AND
TERMINATION
SECTION
6.01. Amendment. Prior
to the Transfer Date, neither the GDRs nor this Deposit Agreement may be amended
in a manner which is adverse to the Holders or Beneficial Owners, except as
required by law.
Except as
provided in the preceding sentence, the GDRs and the Deposit Agreement may at
any time be amended by agreement between the Company and the
Depositary. Any amendment which imposes or increases any fees or
charges (other than the fees of the Depositary for the issuance, execution and
delivery of GDRs and taxes and other governmental charges), or which otherwise
prejudices any substantial existing right of Holders, will not take effect as to
outstanding GDRs until the expiration of 30 days after the notice of such
amendment has been given to the Holders of outstanding GDRs. Every
Holder and Beneficial Owner at the time any amendment becomes effective will be
deemed, by continuing to hold its GDRs or to own any beneficial interest
therein, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair
the right of the Holders of any GDR to surrender such GDR and receive therefor
the Deposited Securities represented thereby or instruments of transfer
therefor, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding
the foregoing, the Deposit Agreement may be amended at any time (whether or not
materially adverse to the Holders or Beneficial Owners) by agreement between the
Company and the Depositary if such amendment is, in their view, necessary or
desirable to make tax benefits available to Holders or Beneficial Owners or to
take into account new rules adopted by the NASD or DTC, in each case as
described under "Possible Amendments to the Deposit Agreement" in the Final
Offering Circular dated November 25, 1992, which section is attached hereto as
Exhibit E.
27
SECTION
6.02. Termination. Before
the Transfer Date, the Deposit Agreement may not be terminated except as
required by law. On and after the Transfer Date, the Depositary
shall, whenever so directed by the Company, terminate this Agreement by mailing
notice of such termination to the Holders of all GDRs then outstanding at least
60 days prior to the date fixed in such notice for such
termination. On and after the Transfer Date, the Depositary may
likewise terminate this Agreement if at any time 90 days after the Depositary
shall have delivered to the Company a written notice of its election to resign,
a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.05.
If any
GDRs shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of GDRs, shall
suspend the distribution of dividends to the Holders thereof, shall not accept
deposits of Shares (and shall instruct each Custodian to act accordingly), and
shall not give any further notices or perform any further acts under this
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities and shall, as directed by
the Company, either (i) sell property and rights and convert Deposited
Securities into cash and deliver the net proceeds of such sales or conversions
as provided in this Agreement or (ii) deliver Deposited Securities, in each case
together with any dividends or other distributions received with respect
thereto, in exchange for GDRs surrendered to the Depositary. At any
time after the expiration of six months from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold the net proceeds of any such sale, together with any other cash
then held by it hereunder, without liability for interest, for the pro rata
benefit of the Holders of GDRs which have not theretofore been
surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Agreement, except to account for such
net proceeds and other cash. Upon the termination of this Agreement,
the Company shall be discharged from all obligations under this Agreement except
for its obligations to the Depositary under Section 5.06 and 5.10
hereof. The obligations of the Depositary under Section 5.10 hereof
shall survive the termination of this Agreement.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.01. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts shall constitute one and the
same instrument. Copies of this Agreement shall be filed with the
Depositary and each Custodian and shall be open to inspection by any Holder at
the Principal New York Office and Principal London Office of the Depositary and
the principal office of any Custodian during business hours.
SECTION
7.02. No Third-Party
Beneficiaries. This Agreement is for the exclusive benefit of
the parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person, except as expressly provided in
Section 4.13 with respect to the right to receive upon request certain
information with respect to the Company.
28
SECTION
7.03. Severability. In
case any one or more of the provisions contained in this Agreement or in the
GDRs should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.04. Holders and Beneficial
Owners as Parties; Binding Effect. The Holders and Beneficial
Owners shall be parties to this Agreement and shall be bound by all of the terms
and conditions hereof and of the GDRs by acceptance of a GDR or by acquisition
of any beneficial interest therein.
SECTION
7.05. Notices. Any
and all notices to be given to the Company shall be in writing and shall be
deemed to have been duly given if personally delivered, or sent by mail (if
domestic, then by first class; if overseas, then by first class airmail) or air
courier, or by cable, telex or facsimile transmission confirmed by letter sent
by mail or air courier, addressed to Grasim Industries Limited, Industry House,
159 Churchgate Reclamation, Bombay 400 020, India; Attention: ▇.▇.
▇▇▇▇▇ (telex number: 85▇▇▇ ▇▇▇▇ ▇N; facsimile number: (▇▇-▇▇)
▇▇▇-▇▇▇▇), or to any other address which the Company may specify in
writing.
Any and
all such notices to be given to the Depositary shall be in writing and shall be
deemed to have been duly given if personally delivered, or sent by mail (if
domestic, then by first class; if overseas, then by first class airmail) or air
courier, or by cable, telex or facsimile transmission confirmed by letter sent
by mail or air courier, address to Citibank, N.A., 11▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Department (telex
number: ITT: 420392; RCA: 235530; facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇),
or to any other address which the Depositary may specify in
writing.
Any and
all notices to be given to any Holder shall be in writing and shall be deemed to
have been duly given if personally delivered, or sent by mail (if domestic, then
by first class; if overseas, then by first class airmail) or air courier, or by
cable, telex or facsimile transmission confirmed by letter sent by mail or air
courier, addressed to such Holder at the address of such Holder as it appears on
the transfer books of the Depositary, or, if such Holder shall have filed with
the Depositary a written request that notices intended for such Holder be mailed
to some other address, at the address specified in such request.
Delivery
of a notice sent by mail or air courier shall be deemed to be effective three
days (in the case of domestic mail or air courier) or seven days (in the case of
overseas mail) after dispatch, and any notice sent by cable, telex or facsimile
transmission as provided in this Section shall be deemed to be effective 24
hours after dispatch. The Depositary or the Company may, however, act
upon any cable, telex or facsimile transmission received by it from the other or
from any Holder, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION
7.06. Governing
Law. This Agreement and the GDRs shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws (without giving effect to the conflict of law principles
thereof) of the State of New York.
29
SECTION
7.07. Prohibition of
Assignment. The Depositary may not assign or otherwise
transfer any of its rights or obligations hereunder, except as otherwise
provided herein or with the prior written consent of the Company.
IN
WITNESS WHEREOF, GRASIM INDUSTRIES LIMITED and CITIBANK, N.A. have duly executed
this Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of GDRs
issued in accordance with the terms hereof or upon acquisition of any beneficial
interest therein.
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GRASIM
INDUSTRIES LIMITED
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/s/ [illegible]
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Name:
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Title:
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CITIBANK,
N.A.
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
Vice President
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30
EXHIBIT
A
Letter of
Representations
GRASIM
INDUSTRIES LIMITED
(Name of
Issuer)
CITIBANK,
N.A.
(Name of
Depositary)
CITIBANK,
N.A.
(Name of
Custodian)
November 25, 1992
The
Depository Trust Company
55 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Counsel's Office
|
Re:
|
Global
Depositary Receipts for Global Depositary Shares
representing equity shares, nominal value of 10 Rupees per share (the "Shares"), of Grasim Industries Limited |
Ladies
and Gentlemen:
The
purpose of this letter is to set out certain matters relating to the
above-referenced Global Depositary Receipts evidencing Global Depositary Shares
(CUSIP No. ▇▇▇▇▇▇▇▇▇ (the "GDRs") or "GDSs"
respectively). Citibank, N.A. (the "Depositary") is acting as
depositary for Grasim Industries Limited (the "Issuer") with respect to the GDSs
and GDRs pursuant to a deposit agreement dated as of November 25, 1992 between
the Issuer and the Depositary (the "Deposit Agreement"). Citibank,
N.A. is also acting as custodian (the "Custodian") for The Depository Trust
Company ("DTC")
of the Master Certificate referred to below. The GDSs will be issued
pursuant to the Deposit Agreement. The reselling participants
represented by Citicorp International Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Ltd. are reselling the GDSs through DTC.
To induce
DTC to accept the GDSs as eligible for deposit at DTC, and to act in accordance
with its Rules with respect to the GDSs, the Issuer, the Depositary and the
Custodian make the following representations to DTC.
1. Subsequent
to closing on the GDSs on December 2, 1992, there shall be deposited with DTC
one certificate (the "Master Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an initial
maximum amount of 6,933,745 Global Depositary Shares. The Master
Certificate shall remain in the Custodian's custody subject to the provisions of
the FAST Balance Certificate Agreement between the Custodian and DTC dated as of
February 19, 1976. The Master Certificate shall bear the following
legend in addition to any other legends in accordance with the Deposit Agreement
instructed by the Depositary:
A-1
Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the agent authorized by the
issuer for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The
Issuer represents that all of the GDSs to be deposited with DTC will be
distributed only in connection with transactions effected pursuant to Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act") and
transactions effected in accordance with Rules 903 or 904 of Regulation S under
the Securities Act.
3. The
Issuer represents that at the time of issuance, none of the GDRs, GDSs or the
Shares were of a class that either was listed on a U.S. securities exchange or
quoted on NASDAQ.
4. In the
event of any solicitation of proxies from or voting by holders or beneficial
owners of the GDSs, a record date shall be established for such purposes and, to
the extent possible, notice of such record date shall be sent to DTC not less
than 15 calendar days in advance of such record date.
5. The
Offering Circular relating to the GDSs indicates that the GDSs to be deposited
with DTC are to be offered: (i) in connection with transactions
effected pursuant to Rule 144A; and (ii) in accordance with Rules 903 or 904 of
Regulation S under the Securities Act. The Issuer represents that the
GDSs have been offered in a manner that is reasonably designed to prevent the
transfer of the GDSs unless the GDSs have been registered under the Securities
Act or an exemption therefrom is available. The Issuer recognizes
that DTC does not in any way undertake to, and shall not have any responsibility
to, monitor or ascertain the compliance of any transactions in the GDSs or with
any exemptions from registration under the Securities Act or of any other state
or federal securities laws.
6. In the
event of an increase in the number of Global Depositary Shares evidenced by the
Master Certificate, such increase shall be effected as follows:
A-2
The
Depositary may, at or before 6:30 p.m. (Eastern) on any day on which DTC is open
for business, send DTC instructions ("Deposit
Instructions") through DTC's Deposit and Withdrawal at Custodian ("DWAC") service to
increase a DTC participant's account by a specified number of
GDSs. If the Depositary does not participate in DTC's DWAC service,
"Deposit Instructions" shall mean instructions sent by 12:30 p.m. (Eastern) from
the Depositary to DTC to increase the Master Certificate by the appropriate
quantity of securities through the DTAD (Direct Transfer Agent Deposit)
service. The Depositary and DTC agree that such notification to DTC
shall be deemed to be the receipt by DTC of a new, reissued or reregistered
certificated security on registration of transfer to the name of CEDE & Co.
for the quantity of securities evidenced by the Master Certificate after the
Master Certificate has been increased.
Concurrent
with any action taken pursuant to the above, DTC shall cause the Depositary to
make appropriate notations in its records indicating such increase in the total
number of Global Depositary Shares evidenced by the Master
Certificate.
7. In the
event of a reduction in the manner of Global Depositary Shares evidenced by the
Master Certificate, such reduction shall be effected as follows:
On each
day on which the Depositary is open for business and on which it receives from
DTC instructions ("Withdrawal
Instructions") originated by a DTC participant to decrease the DTC
participant's account by a specified number of GDSs, the Depositary shall, at or
before 6:30 p.m. (Eastern) that day, either approve or disapprove the Withdrawal
Instructions through the DWAC service. If the Depositary does not
participate in the DWAC service, "Withdrawal Instructions" shall mean
instructions from the DTC participant to the Depositary to decrease the Master
Certificate by the appropriate quantity of securities and the Depositary shall
be deemed to have approved such Withdrawal Instructions if the Depositary
notifies DTC through the CODX (urgent withdrawal at transfer agent) service that
the Master Certificate has been decreased, by 5:00 p.m. (Eastern).
Concurrent
with any action taken pursuant to the above, DTC shall cause the Depositary to
make appropriate notations in its records indicating such reduction in the total
number of Global Depositary Shares evidenced by the Master
Certificate.
8. In the
event of a stock split, recapitalization, reorganization or any other similar
transaction resulting in the cancellation of all or any part of the GDSs or the
Deposited Securities (as defined in the Deposit Agreement) outstanding, the
Issuer or the Depositary shall send DTC a notice of such event as soon as
practicable prior to the effective date of such transaction.
9. In the
event of a cash dividend payment or other distribution, or an offering or
issuance of rights with respect to the GDSs or the Deposited Securities
outstanding, the Issuer or the Depositary shall send DTC a notice
specifying: (a) the amount of and conditions, if any, applicable to
such payment, distribution or rights offering or issuance; (b) any applicable
expiration or deadline date, or any date by which any action on the part of
holders of GDRs is required; and (c) the date any [PAGE A-5 MISSING FROM MASTER
10-12]
The
Custodian shall confirm DTC's receipt of such telecopy by telephoning the
Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇.
A-3
10. Payments
of dividends or other cash distributions with respect to the GDSs shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in same
day funds on each payment date (or in accordance with existing arrangements
between the Issuer or the Depositary and DTC). Such payments shall be
made payable to the order of Cede & Co.
11. Other
cash payments shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in next day funds on each payment date (or in accordance with
existing arrangements between the Issuer or the Depositary and
DTC). Such payments shall be made payable to the order of Cede &
Co., and absent other instructions shall be addressed as follows:
NDFS
Redemption Department
The
Depository Trust Company
55 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
12. DTC may
direct the Issuer or the Depositary to use any other telecopy number or address
of DTC as the number or address to which notices or payments may be
sent.
13. In the
event the Issuer determines that owners of beneficial interests in the Master
Certificate shall be able to obtain certificated GDRs, the Issuer or the
Depositary may notify DTC of the availability of Master
Certificates. In such event, the Issuer or the Depositary shall
issue, transfer, and exchange Master Certificates in appropriate amounts, as
required by DTC and others.
14. DTC may
discontinue its services as a securities depository with respect to the GDSs at
any time by giving 90 days' notice to the Issuer or the Depositary (at which
time DTC will confirm with the Issuer or the Depositary the aggregate number of
GDSs outstanding) and discharging its responsibilities with respect thereto
under applicable law. Under such circumstances, at DTC's request the
Issuer and the Depositary shall cooperate fully with DTC by taking prompt
appropriate action to make alternative arrangements for book-entry settlement
for the GDSs or to make available one or more separate certificates evidencing
GDSs to any DTC Participant having GDSs credited to its DTC
account.
15. The
Issuer and the Depositary acknowledge that as long as Cede & Co. is the sole
record owner of the GDRs and GDSs, Cede & Co. shall be entitled to all
voting rights, if any, applicable to the GDSs and to receive the full amount per
share (United States payable rate, net of Depositary fees and expenses) of all
dividends with respect to the GDSs. The Issuer and the Depositary
acknowledge that DTC shall treat any Participant having GDSs credited to the DTC
account as entitled to the full benefits of ownership of such
GDSs. Without limiting the generality of the preceding sentence, the
Issuer and the Depositary acknowledge that DTC shall treat any Participant
having GDSs credited to its DTC account as entitled to receive distributions and
voting rights, if any, in respect of GDSs and, subject to the Deposit Agreement,
to receive certificates evidencing GDSs. The Issuer and the
Depositary recognize that DTC does not in any way undertake to, and shall not
have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with any of the provisions of Rule 144A, of other
exemptions under the Securities Act of 1933, as amended, or of any other state
or federal securities laws.
A-4
16. The
Issuer has agreed that during any period in which it is neither subject to
Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange
Act"), nor exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, the holder of GDRs, the beneficial owners in the Master
Certificate and a prospective purchaser of GDSs designated by such holder or
beneficial owner will have the right to obtain from the Issuer, upon request,
copies of the information required by paragraph (d)(4)(i) of Rule
144A.
* * * *
This
Letter may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
Nothing
herein shall be deemed to require the Depositary to advance funds on behalf of
the Issuer.
|
Very
truly yours,
GRASIM
INDUSTRIES LIMITED
|
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|
|
By:
|
||
| Name: | |||
| Title: | |||
|
CITIBANK,
N.A.
(as
Depositary)
|
|||
|
By:
|
|||
|
(Authorized
Officer's Signature)
|
|||
|
CITIBANK,
N.A.
(as
Custodian)
|
|||
|
By:
|
|||
|
(Authorized
Officer's Signature)
|
|||
A-5
Received
and Accepted:
THE
DEPOSITORY TRUST COMPANY
|
By:
|
||
|
(Authorized
Officer)
|
A-6
EXHIBIT
B
|
Number
__________________
|
CUSIP
Number ▇▇▇▇▇▇▇▇▇
GLOBAL
DEPOSITARY SHARES (EACHGLOBAL DEPOSITARY SHARE REPRESENTING
ONE SHARE)
|
(FORM OF
FACE OF [MASTER] GDR)
[MASTER]
GLOBAL DEPOSITARY RECEIPT
FOR
GLOBAL
DEPOSITARY SHARES
Representing
DEPOSITED
EQUITY SHARES
NOMINAL
VALUE 10 RUPEES PER SHARE, OF
GRASIM
INDUSTRIES LIMITED
(Incorporated
in the Republic of India with limited liability)
B-1
[DTC
LEGEND
Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the agent authorized by the
issuer for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
SECURITIES ACT
LEGEND
NEITHER
THIS SECURITY NOR ANY SECURITY REPRESENTED HEREBY HAS BEEN REGISTERED UNDER THE
UNITED STATES OF AMERICA SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF THE ISSUER THAT THIS SECURITY OR ANY DEPOSITARY RECEIPT REPRESENTING
THIS SECURITY AND ANY SECURITY REPRESENTED HEREBY MAY BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER THAT IS AWARE THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT.
INDIAN
LEGEND
THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER
THAT THIS SECURITY AND THE GLOBAL DEPOSITARY SHARES REPRESENTED HEREBY MAY NOT
AT ANY TIME BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY TO ANY PERSON IN INDIA OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, A RESIDENT OF INDIA.
CITIBANK,
N.A., a national banking association organized and existing under the laws of
the United States of America, as Depositary (the "Depositary"), hereby certifies
that _______________ (Cede & Co., as nominee of The Depository Trust
Company,] is the owner of ______________ [that number of] Global Depositary
Shares [indicated on the records of the Depositary], representing deposited
equity shares, nominal value 10 Rupees per share, or evidence of the right to
receive such shares ("Shares"), of Grasim Industries Limited, a corporation
organized under the laws of the Republic of India (the "Company"). At
the date of the Deposit Agreement (as defined below), each Global Depositary
Share ("GDS") represents one Share deposited under the Deposit Agreement with
the Custodian, which at the date of execution of the Deposit Agreement is
Citibank, N.A. (Bombay branch).
B-2
(1) The Deposit
Agreement. This Global Depositary Receipt ("GDR") is one of an
issue (herein called the "GDRs"), all issued and to be issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of November 25, 1992
(the "Deposit Agreement"), by and among the Company, the Depositary and all
Holders and Beneficial Owners from time to time of GDRs issued thereunder, each
of whom by accepting a GDR or acquiring any beneficial interest therein agrees
to become a party thereto and becomes bound by all the terms and provisions
thereof. The Deposit Agreement sets forth the rights of Holders and
Beneficial Owners of the GDRs and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file
at the Principal New York Office and Principal London Office of the Depositary
and at the principal office of the Custodian. The statements made on
the face and the reverse of this GDR are summaries of certain provisions of the
Deposit Agreement and are qualified by and subject to the detailed provisions of
the Deposit Agreement, to which reference is hereby made. Terms
defined in the Deposit Agreement and not otherwise defined herein have the same
defined meanings set forth in the Deposit Agreement.
(2) Surrender of GDRs and
Withdrawal of Deposited Securities. Upon:
(i) surrender
of GDSs by (a) delivery at the Depositary's Principal New York Office, the
Depositary's Principal London Office or at such other offices as the Depositary
may designate of a GDR (properly endorsed in blank or accompanied by proper
instruments of transfer in blank, to the extent required by the Depositary), or
(b) receipt by the Depositary by electronic transfer from DTC or a DTC
participant to the Depositary's DTC account of certain GDSs (along with written
instructions from DTC or a DTC participant requesting withdrawal of Deposited
Securities represented by such GDSs on behalf of the Beneficial Owner of the
GDRs which evidence such GDSs ("Withdrawal
Instructions")) and cancellation of such GDSs by debit to such account
and adjustment of the records of the Depositary in respect of the Master
Receipt, in either case for the purpose of withdrawal of the Deposited
Securities represented thereby,
(ii) payment
of the fees and expenses of the Depositary for the cancellation of GDSs (as set
forth in paragraph (8) of this GDR) and all taxes and other governmental charges
payable in connection with such surrender and withdrawal,
(iii) receipt
by the Depositary of certification substantially in the form of Exhibit C-2
annexed to the Deposit Agreement (by or on behalf of the beneficial owner of the
Deposited Securities being withdrawn), including an executed version of the
Right of First Refusal Agreement referred to therein (so long as and in such
other form as the Company shall instruct the Depositary in writing to accept),
and
B-3
(iv) subject
to the terms and conditions of the Deposit Agreement, the
Holder or Beneficial Owner of the GDRs which evidence such GDSs shall be
entitled to physical, or if available electronic, delivery at the office of the
Custodian in Bombay without unreasonable delay of the applicable Deposited
Securities. Withdrawal Instructions shall be given by letter or, at
the request, risk and expense of the Holder, Beneficial Owner or DTC
participant, by cable, telex or facsimile transmission.
Certificates
representing Deposited Securities withdrawn hereunder shall bear the 45 Day
Legend (if withdrawn before the Transfer Date) and (in the case of Shares) the
Right of First Refusal Legend and may bear the Securities Act Legend and any
other legends or notations not inconsistent with this Deposit Agreement which
are deemed necessary by the Company or the Depositary to comply with applicable
laws.
(3) Transfers, Split-ups and
Combinations. Subject to the terms and conditions of the
Deposit Agreement and this GDR, this GDR is transferable on the books of the
Depositary upon any surrender by the Holder hereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice and the accurate completion of the certifications appearing on the
reverse hereof relating to compliance with the restrictions on transfer hereof)
and duly stamped as may be required by any applicable law; provided that the
Depositary shall refuse to register any transfer of this GDR if such
registration would cause the total number of Shares represented by GDSs
evidenced by GDRs held by any Holder of such GDRs (other than the Master GDR) to
exceed any limit under applicable law with respect to which the Company has
notified the Depositary in writing.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender of any GDR for the purpose of withdrawal , of
any Deposited Securities or adjustment to the Depositary's records in order to
reflect deposits of Shares or such transfer, surrender or withdrawal, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or the presenter of a GDR or the presenter of written instructions, of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in paragraph (8) of this GDR, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature, including but not limited to a signature guarantee in accordance
with industry practice, and (iii) compliance with any laws or governmental
regulations relating to depositary receipts in general or to the withdrawal of
Deposited Securities.
After
consultation with the Company, the delivery of GDRs against, or adjustments in
the records of the Depositary to reflect, deposits of Shares generally or
particular Shares may be suspended or withheld, or the registration of transfer
of GDRs in particular instances may be refused, or the registration of transfer
generally may be suspended, or the surrender of outstanding GDRs or the receipt
of Withdrawal Instructions from any person having a beneficial interest in
Book-Entry GDSs represented by the Master GDR for the purpose of withdrawal of
Deposited Securities may be suspended, during any period when the transfer books
of the Depositary or the Company (or the appointed agent of the Company for the
transfer and registration of Shares) are closed, or if any such action is deemed
necessary or advisable by the Company or the Depositary, in good faith, at any
time or from time to time.
B-4
The
Depositary may refuse to execute or deliver or register the transfer of all or
any part of any GDR, or make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval, payment of applicable Indian or other taxes or governmental
charges, or legal or beneficial ownership and the nature of such interest, to
provide information relating to the registration on the books of the Company (or
the appointed agent of the Company for the transfer and registration of Shares)
of the Shares or other securities presented for deposit or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may deem necessary or proper to enable the Depositary
or the Company to perform its obligations under the Deposit
Agreement.
(4) Interchangeability of
Book-Entry GDSs and Separate GDRs. Subject to the terms and
conditions of the Deposit Agreement, upon receipt by the Depositary at its
Principal New York Office of written instructions from DTC or its nominee on
behalf of any person having a beneficial interest in Book-Entry GDSs evidenced
by the Master GDR for the purpose of directing the Depositary to execute and
deliver a separate GDR evidencing such GDSs, and upon receipt by the Depositary
at its Principal New York Office or Principal London Office of a written order
of such person containing registration instructions and such other information
as the Depositary may require in order to execute and deliver such separate GDR,
and together with fully completed, signed certification in substantially the
form attached to the Deposit Agreement as Exhibit C-3, and upon payment of the
fees and expenses of the Depositary, the Depositary shall follow the procedures
set forth in paragraph 7 of the Letter of Representations attached to the
Deposit Agreement as Exhibit A for the purpose of reducing the number of
Book-Entry GDSs evidenced by the Master GDR and, following such reduction, shall
execute and deliver at its Principal New York Office or Principal London Office
to or upon the order of the person or persons named in such order a GDR or GDRs
registered in the name or names requested by such person and evidencing in the
aggregate the number of GDSs equal to the reduction in the number evidenced by
the Master GDR.
Subject
to the terms and conditions of the Deposit Agreement, upon receipt by the
Depositary at its Principal New York Office or Principal London Office of a
separate GDR or GDRs, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Depositary, together with fully completed,
signed certification in substantially the form attached to the Deposit Agreement
as Exhibit C-4, and together with written instructions directing the Depositary
to adjust its records to reflect an increase in the aggregate amount of
Book-Entry GDSs evidenced by the Master GDR (including, without limitation,
information regarding the DTC participant account to be credited with such
increase), and upon payment of the fees and expenses of the Depositary, the
Depositary shall cancel such separate GDR or GDRs and shall follow the
procedures set forth in paragraph 6 of the Letter of Representations attached to
the Deposit Agreement as Exhibit A for the purpose of reflecting such increase
in the number of Book-Entry GDSs evidenced by the Master GDR.
B-5
(5) Liability of Holder for
Taxes and Other Charges. If any Indian or other tax or
governmental charge shall become payable with respect hereto or any Deposited
Securities represented by the GDSs evidenced hereby, such tax or other
governmental charge shall be payable by the Holder hereof to the Depositary and
any Beneficial Owner hereof shall be liable to the Holder
therefor. The Depositary may, and upon the instructions of the
Company shall, refuse to effect any registration of transfer of all or part of
this GDR or any withdrawal of Deposited Securities represented by the GDSs
evidenced hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder hereof any part
or all of the Deposited Securities represented by the GDSs evidenced hereby, and
may apply such dividends or other distributions or the proceeds of any such sale
in payment of such tax or other governmental charge, the Holder and the
Beneficial Owners hereof remaining liable for any deficiency.
(6) Warranties by
Depositor. Each person depositing Shares under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Shares and
each certificate therefor are validly issued, outstanding, fully paid and
non-assessable and not subject to any claim in respect of preemptive rights, and
that the person making such deposit is duly authorized so to do. Such
representations and warranties shall survive the deposit of Shares and the
issuance of GDRs or adjustments in the Depositary's records in respect
thereof.
(7) Additional
Warranties. Each person acquiring a beneficial interest in any
GDRs (whether by purchase in the initial offering of the GDSs, by subsequent
transfer, upon issuance by the Depositary or otherwise) shall be deemed thereby
to:
(A) (1)
represent that either (i) it is acquiring such interest for its own account or
an account of another entity and that it or such entity is a QIB or (ii) it is
outside the United States or is a United States professional fiduciary acquiring
such interest on a discretionary basis for the benefit or account of a person
other than a U.S. person, (2) represent that it is not located in India and is
not a resident of India or purchasing for, or for the account or benefit of, a
resident of India, (3) acknowledge that the GDRs, the GDSs and the Deposited
Securities represented by the GDSs have not been, and will not be, registered
under the Securities Act and may not be offered, sold, pledged or otherwise
transferred except in compliance with the Securities Act Legend, (4) acknowledge
that the GDRs and GDSs may not be offered or sold directly or indirectly to any
person in India or to, or for the account or benefit of, a resident of India,
(5) agree that if it should offer, sell, transfer or otherwise dispose of the
GDRs, the GDSs or the underlying Deposited Securities or any beneficial interest
therein, it will do so only as permitted by the applicable legends and, if
applicable, the Right of First Refusal Agreement, and in each case will give the
purchaser notice of any restrictions on resale of the GDRs, GDSs and Deposited
Securities, (6) acknowledge that, unless otherwise agreed by the Company and the
Depositary, the GDRs and each Share withdrawn from the depositary facility will
bear the Securities Act Legend, (7) acknowledge that the GDRs will bear the
Indian Legend, (8) acknowledge that Shares withdrawn from the depositary
facility before the Transfer Date will bear the 45 Day Legend, (9) understand
and agree that as a condition to the withdrawal of Shares from the depositary
facility, the beneficial owner of such Shares will be required to enter into a
Right of First Refusal Agreement and (10) agree that it will not transfer before
the Transfer Date any Deposited Security, and
(B) represent
and warrant that such receipt, transfer or surrender and withdrawal complies
with such restrictions. Such representations, warranties and
agreements shall survive any such receipt, transfer or surrender and
withdrawal.
B-6
(8) Charges of
Depositary. The Depositary will not charge the party to whom
GDSs are delivered against deposits. The Depositary will charge
persons exchanging beneficial interests in the Master GDR for GDRs in physical,
certificated form or persons exchanging GDRs in physical, certificated form for
beneficial interests in the Master GDR $50 per GDR Certificate issued or
surrendered. The Depositary will charge the party surrendering GDSs
and requesting sale of Deposited Securities $5.00 for each 100 GDSs (or portion
thereof) surrendered. The Depositary will charge the party to whom
any distribution of dividends or other property, or for whom the sale or
exercise of rights, is made with respect to GDSs $0.02 for each
GDS. The Company will pay the expenses, fees and charges of the
Depositary and any Registrar only as provided in the Deposit
Agreement. The Depositary will pay any other charges and expenses of
the Depositary and the Registrar. Holders of GDRs will pay (i) taxes
and other governmental charges (including stamp duty), (ii) such registration
fees as may from time to time be in effect for the registration of Shares
generally on the register of the Company maintained for that purpose and
accordingly applicable to transfers of Shares to or from the name of the
Depositary or its Nominee or a Custodian or its nominee on the making of
deposits or withdrawals as provided in the Deposit Agreement, (iii) such cable,
telex, facsimile transmission and delivery expenses as are expressly provided in
the Deposit Agreement to be at the expense of persons depositing Shares or
Holders and (iv) such reasonable expenses as are incurred by the Depositary in
the conversion of foreign currency into United States dollars.
All such
charges may be changed by agreement between the Depositary and the Company at
any time and from time to time.
(9) Title to
GDRs. Subject to the limitations set forth herein or in the
Deposit Agreement, it is a condition of this GDR, and every successive Holder
hereof by accepting or holding the same consents and agrees, that when properly
endorsed or accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard industry practice), and upon compliance
with the restrictions on registration of transfer set forth in the legends
appearing above on this GDR, title to this GDR (and to each GDS evidenced
hereby) is transferable by delivery with the same effect as in the case of a
negotiable instrument in accordance with the laws of the State of New York;
provided, however, that the
Company and the Depositary, notwithstanding any notice to the contrary, may deem
and treat the Holder of a GDR as the absolute owner thereof for any purpose,
including but not limited to the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Depositary Agreement and neither the Depositary nor the Company shall
have any obligation or be subject to any liability under the Deposit Agreement
to any holder of a GDR unless such holder is the Holder thereof.
(10) Validity of
GDR. This GDR shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this GDR has
been executed by the Depositary by the manual signature of a duly authorized
signatory or, if a Registrar shall have been appointed, by the manual signature
of a duly authorized signatory of such Registrar.
B-7
(11) Disclosure of Interests and
Ownership Restrictions. To the extent that provisions of or
governing any Deposited Securities or the rules or regulations of any
governmental authority require the disclosure to the Company or other persons of
the beneficial or other ownership of Deposited Securities, other Shares and
other securities, the Depositary shall use its reasonable efforts to comply with
such provisions, rules or regulations and with Company instructions in respect
thereof, and Holders and Beneficial Owners shall comply with all such disclosure
requirements and any related ownership limitations and shall cooperate with the
Depositary's compliance with such provisions, rules or regulations and with such
Company instructions. The Company may restrict transfers of shares or
GDSs where such transfer might result in ownership of Shares exceeding the
limits under applicable law. The Company is entitled under the
Deposit Agreement to instruct the Depositary to take action with respect to
beneficial ownership of Shares by any Holder or Beneficial Owner in excess of
any such limitations including, but not limited to, a mandatory sale on behalf
of a Holder or Beneficial Owner of the Shares represented by the GDSs held by
such Holder or Beneficial Owner in excess of such limitations.
(12) Available
Information. The Company intends to furnish the Commission
with certain public reports and documents required by the laws of India, the
rules of any securities exchange on which any securities of the Company are
listed or otherwise, in accordance with Rule 12g3-2(b) of the Securities
Exchange Act. Should the Company become subject to additional
informational requirements, it shall in accordance therewith file reports and
other information with the Commission. If, at any time, the Company
is neither subject to Section 13 or 15(d) of the Securities Exchange Act nor
exempt from reporting pursuant to Rule 12g3-2(b) of the Securities Exchange Act,
the Company hereby undertakes to provide to any Holder or Beneficial Owner and
any prospective purchaser designated by a Holder or Beneficial Owner, upon the
request of such Holder, Beneficial Owner or prospective purchaser, copies of the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to permit compliance with Rule 144A in connection with resales of
GDSs.
Dated:
|
Countersigned
|
CITIBANK,
N.A.,
as
Depositary
|
|||
|
By:
|
|
By:
|
||
|
Authorized
Signatory
|
Vice
President
|
|||
The
address of the Principal New York Office of the Depositary is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The address of the Principal
London Office of the Depositary is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇.
B-8
(FORM OF
REVERSE OF GDR)
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(13) Dividends and Distributions;
Rights. Whenever the Custodian or the Depositary receives any
cash dividend or other cash distribution in respect of any Deposited Securities,
the Depositary shall (if at the time of the receipt thereof any amounts received
in a foreign currency can in the judgment of the Depositary be converted on a
reasonable basis into dollars which can, at the time of receipt thereof be
transferred to the United States and distributed to the Holders entitled
thereto) cause such dividend or distribution to be converted into dollars and
distribute promptly the amount thus received (less any reasonable and customary
expenses incurred by the Depositary in converting such foreign currency) to the
Holders entitled thereto in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, after deduction or upon payment
of the fees and expenses of the Depositary; provided, however, that in the
event that the Company, the Custodian or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holders in respect of the
GDSs representing such Deposited Securities shall be reduced
accordingly. If at any time the Depositary determines that in its
judgment any foreign currency received by it is not convertible on a reasonable
basis into dollars distributable to the Holders entitled thereto, or may not be
so convertible for all of the Holders entitled thereto, the Depositary may in
its discretion make such conversion, if any, and distribution in dollars to the
extent permissible to the Holders for whom such conversion and distribution is
practicable and may distribute the balance of the foreign currency (or any
appropriate document evidencing the right to receive such foreign currency)
received and not so convertible by the Depositary to, or hold such balance for
the respective accounts of, the Holders for whom such conversion and
distribution is not practicable.
Whenever
the Custodian shall receive any distribution other than cash, Shares or rights
upon any Deposited Securities, the Depositary shall cause the securities or
property received by the Custodian to be distributed to the Holders entitled
thereto, after deduction or upon payment of the fees and expenses of the
Depositary, in proportion to the number of GDSs representing such Deposited
Securities held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary it cannot cause such securities or property to be
distributed or such distribution cannot be made proportionately among the
Holders of Physical GDSs entitled thereto, or if for any other reason the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private sale) of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale shall be distributed by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash.
B-9
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, either (i) distribute to the Holders
entitled thereto, in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, additional GDRs for an aggregate
number of GDSs representing the number of Shares received as such dividend or
free distribution, or (ii) reflect on the records of the Depositary such
increase in the aggregate number of GDSs representing such Shares, in either
case after deduction or upon payment of the fees and expenses of the Depositary;
provided, however, that if for any reason the Depositary deems such distribution
not to be feasible, the Depositary may adopt such method as it may deem
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the Shares thus received, or
any part thereof, and the net proceeds of any such sale shall be distributed by
the Depositary to the Holders entitled thereto as in the case of a distribution
received in cash. In lieu of issuing GDRs for fractional GDSs in any
such case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute (if at the time of receipt thereof
such distribution can be made into the United States to the Holders entitled
thereto) the net proceeds converted into dollars (if, at the time of receipt
thereof such amounts may in the judgment of the Depositary be converted on a
reasonable basis into dollars), to the holders entitled thereto. If
additional GDRs are not so distributed (except pursuant to the preceding
sentence), or such change in the records of the Depositary is not made, each GDS
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any other nature, the Depositary, after consultation with the Company, shall
have discretion as to the procedure to be followed in making such rights
available to the Holders entitled thereto, subject to Section 5.09 of the
Deposit Agreement, or in disposing of such rights on behalf of such Holders and
making the net proceeds available in cash to such Holders or, if by the terms of
such rights offering or by reason of applicable law, the Depositary may neither
make such rights available to such Holders nor dispose of such rights and make
the net proceeds available to such Holders, then the Depositary shall allow the
rights to lapse; provided, however, that the
Depositary will, if requested by the Company, either (a) make such rights
available to all or certain Holders or Beneficial Owners by means of warrants or
otherwise, if lawful and feasible, after deduction or upon payment of the fees
and expenses of the Depositary, (b) if making such rights available to certain
Holders or Beneficial Owners is not lawful or not feasible, or if the rights
represented by such warrants or other instruments are not exercised and appear
to be about to lapse, make reasonable efforts to sell such rights or warrants or
other instruments at public or private sale, at such place or places and upon
such terms as the Depositary may deem proper, and after deduction or upon
payment of the fees and expenses of the Depositary, allocate the net proceeds of
such sales for the account of the Holders otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any GDR
or GDRs, or otherwise or (c) if it is lawful and feasible, the Depositary may,
in its discretion, after deduction or upon payment of the fees and expenses of
the Depositary, and upon provision of any documents, statements or certificates
that it may specify, take such action as is necessary for certain of the rights
to be exercised and the securities obtained upon the exercise thereof to be sold
under Regulation S or to be resold under Rule 144A, or privately placed with
those Holders or Beneficial Owners to whom such sales or resales may be made or
with whom such private placement may be made without the rights or the
securities to which such rights relate being registered under the Securities
Act.
B-10
Notwithstanding
the foregoing if, by their terms, any rights offered to the holders of Deposited
Securities may be sold or otherwise transferred, the Depositary shall not sell
or transfer any such rights offered in respect of the Deposited Securities
without first offering such rights to the Company for its designees to purchase
in accordance with the Right of First Refusal {as defined below), and further
the Depositary shall not make such rights available to any Holders or Beneficial
Owners as described in clause (a) above except on terms which require compliance
with the Right of First Refusal with respect to such rights. As used
herein, the term "Right of First
Refusal" shall mean the right of first refusal procedures set forth in
the form of Right of First Refusal Agreement appearing in Exhibit C-2 to the
Deposit Agreement, provided that for the purposes of this provision, the term
"undersigned" shall refer to the Depositary, and the term "Offered Shares" shall
refer to the rights proposed to be transferred.
(14) Record
Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued, with respect to the Deposited Securities, or
whenever, for any reason, the Depositary, causes a change in the number of
Shares that are represented by each GDS or whenever the Depositary shall receive
notice of any meeting of holders of Shares or other Deposited Securities, the
Depositary shall fix a record date after consultation with the Company (which
shall be as near as practicable to the corresponding record date for such
distribution or meeting set by the Company) for the determination of the
effectiveness of such change in the number of Shares represented by such GDS or
of Holders who shall be entitled to receive such dividend, distribution or
rights, or the net proceeds of the sale thereof, or to receive information as to
such meeting, subject to the provisions of the Deposit Agreement.
(15) Voting of Deposited
Securities.
HOLDERS
OF GDRs MAY NOT VOTE THE SHARES OR OTHER DEPOSITED SECURITIES REPRESENTED BY THE
GDSs EVIDENCED BY SUCH GDRs AND MAY NOT INSTRUCT THE DEPOSITARY AS TO THE VOTING
OF SUCH DEPOSITED SECURITIES. IN CERTAIN LIMITED CIRCUMSTANCES, AS
SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAY BE REQUIRED TO EXERCISE
THE VOTING RIGHTS IN RESPECT OF THE DEPOSITED SECURITIES AS DIRECTED BY THE
COMPANY.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, fix a record date for determining the Holders
entitled to receive information as to such meeting, and shall mail to the
Holders of record a notice which shall contain: (a) such information
as is contained in such notice of meeting and (b) a statement that the Holders
of GDRs may not vote the Shares or other Deposited Securities represented by
their GDSs.
B-11
(16) Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation of the Company or sale
of assets by the Company, any securities which shall be received by the
Depositary or the Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall be treated as new Deposited Securities, and the GDSs
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional or new GDSs are delivered pursuant to the
following sentence. In any such case the Depositary may, with the
Company's approval, and shall, at the Company's request, execute and deliver
additional GDRs to Holders of Physical GDSs and make appropriate adjustments in
its records on behalf of Holders of GDSs in the Master GDR, as in the case of a
stock dividend, bonus issue or other free distribution in Shares, or call for
the surrender of outstanding GDRs to be exchanged for new GDRs specifically
describing such new Deposited Securities. Immediately upon the
occurrence of any such change, conversion or exchange covered by this Section in
respect of the Deposited Securities, the Depositary shall give notice thereof in
writing, at the Company's expense, to all Holders.
(17) Reports; Inspection of
Transfer Books. The Depositary shall make available for
inspection by Holders at its Principal New York Office and Principal London
Office and at the office of each Custodian copies of the Deposit Agreement, any
notices, reports or communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary or a
Custodian or the nominee of either, as the holder of the Deposited Securities
and (b) made generally available to the holders of such Deposited Securities by
the Company. The Depositary shall also send to Holders copies of such
notices, reports and communications when furnished by the Company to the
Depositary as provided in the Deposit Agreement.
The
Depositary shall keep books at its Principal New York Office for the
registration of GDRs and transfers of GDRs which at all reasonable times shall
be open for inspection by Holders and the Company, provided that such inspection
shall not to the Depositary's knowledge be for the purpose of communicating with
Holders in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the
GDRs. After consultation with the Company, the Depositary may close
the transfer books, at any time or from time to time, when deemed expedient by
it in connection with the performance of its duties under the Deposit
Agreement.
(18) Withholding. Notwithstanding
any other provision of the Deposit Agreement, in the event that the Depositary
determines that any distribution of property (including Shares, rights to
subscribe therefor and other securities) is subject to any tax or governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares, rights to
subscribe therefor and other securities) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or governmental
charges, including by public or private sale, and the Depositary shall
distribute the net proceeds of any such sale or the balance of any such property
after deduction of such taxes or governmental charges to the Holders entitled
thereto.
B-12
(19) Liability of the Company and
the Depositary. Neither the Depositary nor the Company shall
incur any liability to any Holder or Beneficial Owner, if by reason of any
provision of any present or future law of the United States, India or any other
country or jurisdiction, or of any other governmental authority, or by reason of
any provision, present or future, of the Memorandum or Articles of Association
of the Company, or by reason of any act of God or war or other circumstances
beyond its control, the Depositary, the Custodian or the Company is prevented,
delayed or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary, the Custodian or the Company incur any liability to any
Holder or Beneficial Owner by reason of any non-performance or delay, caused as
aforesaid, in performance of any act or thing which by the terms of the Deposit
Agreement it is provided shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
Neither
the Company nor the Depositary assumes any obligation nor shall either of them
be subject to any liability under the Deposit Agreement to Holders or Beneficial
Owners, except that each of them agrees to use its best judgment and to act in
good faith in the performance of its obligations set forth in the Deposit
Agreement. The Depositary and the Company undertake to perform such
duties and only such duties as are specifically set forth in the Deposit
Agreement, and no implied covenants or obligations shall be read into the
Deposit Agreement against the Depositary or the Company.
Neither
the Depositary nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the GDRs, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required, and no Custodian
shall be under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary.
Neither
the Depositary nor the Company shall be liable for any action or inaction by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or Beneficial Owner, or any
other person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents and the Company and its
agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties. Subject to
the provisions of the Deposit Agreement, the Depositary may own and deal in any
class of securities of the Company and its affiliates and in GDSs.
The
Company agrees to indemnify the Depositary and each Custodian against, and hold
each of them harmless from, any liability or expense which may arise out of acts
performed or omitted, including but not limited to any delivery by the
Depositary on behalf of the Company of information regarding the Company, in
accordance with the provisions of the Deposit Agreement and of the GDRs, as the
same may be amended, modified or supplemented from time to time, in any such
case, (i) by either the Depositary or any Custodian, except for any lability or
expense arising out of the gross negligence or willful misconduct of either of
them, or (ii) by the Company or any of its agents, except to the extent that
such liability or expense arises out of information relating to the Depositary
or to the Custodian, as the case may be, furnished in a signed writing to the
Company by the Depositary expressly for use in any document relating to the GDRs
evidencing the GDSs.
B-13
The
Depositary agrees to indemnify the Company and hold it harmless from any
liability or expense which may arise out of acts performed or omitted by the
Depositary or its Custodian or any of their agents due to the gross negligence
or willful misconduct of either the Depositary or the Custodian or any of their
agents.
(20) Resignation and Removal of
Depositary; Substitution of Custodian. The Depositary may at
any time resign as Depositary under the Deposit Agreement by 30 days' written
notice of such election delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may
at any time be removed by the Company by 30 days' written notice of such removal
which shall become effective upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit
Agreement.
The
Depositary may, after consultation with the Company, appoint a substitute or an
additional custodian and the term "Custodian" shall also refer to such
substitute or additional custodian.
(21) Amendment of Deposit
Agreement and GDRs. Prior to the Transfer Date, neither the
GDRs nor the Deposit Agreement may be amended in a manner which is adverse to
the Holders or Beneficial Owners, except as required by law. Except
as provided in the preceding sentence, the GDRs and the Deposit Agreement may at
any time be amended by agreement between the Company and the
Depositary. Any amendment which imposes or increases any fees or
charges (other than the fees of the Depositary for the issuance, execution and
delivery of GDRs and taxes and other governmental charges), or which otherwise
prejudices any substantial existing right of Holders, will not take effect as to
outstanding GDRs until the expiration of 30 days after the notice of such
amendment has been given to the Holders of outstanding GDRs. Every
Holder and Beneficial Owner at the time any amendment becomes effective will be
deemed, by continuing to hold its GDRs or to own any beneficial interest
therein, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair
the right of the Holders of any GDR to surrender such GDR and receive therefor
the Deposited Securities represented thereby or instruments of transfer
therefor, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding
the foregoing, the Deposit Agreement may be amended at any time (whether or not
materially adverse to the Holders or Beneficial Owners) by agreement between the
Company and the Depositary if such amendment is, in their view, necessary or
desirable to make tax benefits available to Holders or Beneficial Owners or to
take into account new rules adopted by the NASD or DTC, in each case as
described under "Possible Amendments to the Deposit Agreement" in the Final
Offering Circular dated November 25, 1992, which section is attached as Exhibit
E to the Deposit Agreement.
B-14
(22) Termination of Deposit
Agreement. Before the Transfer Date, the Deposit Agreement may
not be terminated except as required by law. On and after the
Transfer Date, the Depositary shall, whenever so directed by the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all GDRs then outstanding at least 60 days prior to the date fixed in
such notice for such termination. On and after the Transfer Date, the
Depositary may likewise terminate this Agreement if at any time 90 days after
the Depositary shall have delivered to the Company a written notice of its
election to resign, a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement.
If any
GDRs shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of GDRs, shall
suspend the distribution of dividends to the Holders thereof, shall not accept
deposits of Shares (and shall instruct each Custodian to act accordingly), and
shall not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities and shall, as directed by
the Company, either (i) sell property and rights and convert Deposited
Securities into cash and deliver the net proceeds of such sales or conversions
as provided in the Deposit Agreement or (ii) deliver Deposited Securities, in
each case together with any dividends or other distributions received with
respect thereto, in exchange for GDRs surrendered to the
Depositary. At any time after the expiration of six months from the
date of termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it hereunder, without liability for interest,
for the pro rata benefit of the Holders of GDRs which have not theretofore been
surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash.
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
_______________ whose taxpayer identification number is _________________ and
whose address including postal zip code is _______________ the within GDR and
all rights thereunder, hereby irrevocably constituting and appointing
___________ attorney-in-fact to transfer said GDR on the books of the Depositary
with full power of substitution in the premises.
|
________________________________
[NAME
OF HOLDER]
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|||
|
Dated:
__________________
|
By:
|
||
|
Title:
|
|||
|
NOTICE: The
signature of the Holder to this assignment must correspond with the name
as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change
whatsoever.
|
|||
B-15
SIGNATURE
GUARANTEED
_________________________________
B-16
EXHIBIT
C-1
Certification
and Agreement of Certain Acquirers of
GDRs or
Beneficial Interest in the Master GDR
Upon
Deposit of Shares Pursuant to Section 2.03
of the
Deposit Agreement
[Date]
Citibank,
N.A., as Depositary
ADR
Department
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Grasim Industries
Limited
Dear
Sirs:
Reference
is hereby made to the Deposit Agreement, dated as of November 25, 1992 (the
"Deposit Agreement"), among Grasim Industries Limited, Citibank, N.A., as
Depositary and Holders and Beneficial Owners of Global Depositary Receipts
("GDRs") issued thereunder. Capitalized terms used but not defined
herein shall have the meanings given them in the Deposit Agreement.
1. The
undersigned is acquiring a GDR or a beneficial interest in the Master GDR upon
deposit of Shares pursuant to Section 2.02 of the Deposit
Agreement. The undersigned hereby certifies and agrees as
follows:
|
/__/
|
A.
|
The
undersigned is the beneficial owner of the Shares deposited in connection
herewith. The undersigned is acquiring the GDR or a beneficial
interest in the Master GDR for its own account. The undersigned
is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933).
OR
|
|
/__/
|
B.
|
The
undersigned is a broker-dealer acting as agent on behalf of its customer;
such customer has confirmed to the undersigned in writing that it is a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933), that it is the beneficial owner of the Shares
being deposited in connection herewith and that it either (i) is acquiring
the GDR or a beneficial interest in the Master GDR for its own account or
(ii) is acting for the account of an entity that is a qualified
institutional buyer that will acquire the GDR or a beneficial interest in
the Master GDR for its own account.
OR
|
C-1-1
|
/__/
|
C.
|
The
undersigned is the beneficial owner of the Shares deposited in connection
herewith and is acquiring the GDR or a beneficial interest in the Master
GDR in a transaction in accordance with Regulation S under the Securities
Act of 1933.
OR
|
|
/__/
|
D.
|
The
undersigned is a broker-dealer acting as agent on behalf of its customer,
which customer has confirmed to the undersigned in writing that it is the
beneficial owner of the Shares deposited in connection herewith and that
it is acquiring the GDR or a beneficial interest in the Master GDR in a
transaction in accordance with Regulation S under the Securities Act of
1933.
|
The
undersigned understands (or if the undersigned is a broker-dealer, its customer
has confirmed to it that it, or the entity for whom it is acting, understands)
that the acquirer will become a party to and be bound by the Deposit Agreement
upon becoming a Holder of a GDR or Beneficial Owner of the Master
GDR. The undersigned agrees (or if the undersigned is a
broker-dealer, its customer has confirmed to it in writing that it, or the
entity for whom it is acting, agrees) that it will not offer, sell, pledge or
otherwise transfer any GDR or any beneficial interest in the Master GDR, the
Shares or any other Deposited Securities except (1) to a person who the seller
reasonably believes is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act purchasing for its own account or for the
account of a qualified institutional buyer that is aware that the resale, pledge
or other transfer is being made in reliance on Rule 144A, (2) pursuant to an
exemption from registration in accordance with Rule 903 or Rule 904 of
Regulation S under the Securities Act or (3) pursuant to an effective
registration statement under the Securities Act.
2. The
undersigned is not (or if the undersigned is a broker-dealer acting as agent on
behalf of a customer, such customer has confirmed to it in writing that it, or
the entity for whom it is acting, is not) in India and is not, and is not
acquiring a GDR or an interest in a GDR for the account or benefit of, a
resident of India, and agrees (or if the undersigned is a broker-dealer, its
customer has confirmed to it in writing that it, or the entity for whom it is
acting, agrees) that it will not offer or sell any GDR or any beneficial
interest in the Master GDR directly or indirectly to any person in India or to
or to or for the account or benefit of a resident of India.
C-1-2
3. The
undersigned acknowledges (or if the undersigned is a broker or dealer acting as
agent on behalf of a customer, such customer, or the institution for whom it is
acting, has confirmed to it in writing that it acknowledges) that Deposited
Securities may be withdrawn from the depositary arrangements at any time, but
(i) if such securities are withdrawn before January 16, 1993 they may not be
transferred until such date and will bear a legend to this effect, and (ii) as a
condition to such withdrawal, the beneficial owner of Shares being withdrawn
will be required to enter into a Right of First Refusal Agreement pursuant to
which such person must agree not to transfer all or any part of its interest in
such Shares without first offering the Shares for sale to designees of the
Company, and that such withdrawn Shares will bear a legend to this
effect.
4. The
undersigned represents and warrants that (or if the undersigned is a
broker-dealer acting as agent on behalf of a customer, such customer, or the
entity for whom it is acting, has confirmed to it in writing that) the deposit
of Shares in connection with which this certification is being delivered was
made in compliance with Section 2.02 of the Deposit Agreement.
Very
truly,
[NAME OF
CERTIFYING ENTITY]
[By:______________________________
Title ]
C-1-3
EXHIBIT
C-2
Certification
and Agreement of Persons
Receiving
Deposited Securities Upon Withdrawal
Pursuant
to Section 2.05
of the
Deposit Agreement
[Date]
Citibank,
N.A., as Depositary
ADR
Department
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Grasim Industries
Limited
Dear
Sirs:
Reference
is hereby made to the Deposit Agreement, dated as of November 25, 1992 (the
"Deposit Agreement"), between Grasim Industries Limited (the "Company"),
Citibank, N.A., as Depositary, and Holders and Beneficial Owners of Global
Depositary Receipts ("GDRs") issued thereunder. Capitalized terms
used but not defined herein shall have the meanings given them in the Deposit
Agreement.
Pursuant
to Section 2.05 of the Deposit Agreement, we are surrendering a GDR or an
interest in the Master GDR for the purpose of withdrawal of the Deposited
Securities represented by the GDSs evidenced by such GDR or
interest. We represent and agree as follows:
|
1.
|
We
are the beneficial owners of the Deposited Securities being
withdrawn.
|
|
2.
|
We
are a qualified institutional buyer as defined in Rule 144A under the
Securities Act of 1933 or we acquired
ownership of the GDR or the beneficial interest in the Master GDR
surrendered herewith in accordance with Rule 903 or Rule 904 of Regulation
S under the Securities Act of
1933.
|
|
3.
|
We
acknowledge that the Deposited Securities have not been registered under
the Securities Act of 1933. We agree that we will not offer,
sell, pledge or otherwise transfer or deliver the Deposited Securities
withdrawn hereby except (1) to a person whom we reasonably believe to be a
qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, purchasing for its own account or for the account
of a qualified institutional buyer, that is aware that the resale, pledge
or other transfer is being made in reliance on Rule 144A, (2) pursuant to
an exemption from registration in accordance with Rule 903 or Rule 904 of
Regulation S under the Securities Act of 1933 or (3) pursuant
to an effective registration statement under the Securities
Act. In addition, we understand that the Deposited Securities
may bear the Securities Act Legend, the 45 Day Legend and the Right of
First Refusal Legend (all as defined in the Deposit Agreement) and we
agree not to offer, sell, pledge, transfer or otherwise dispose of the
Deposited Securities withdrawn hereunder except in compliance with such
legends.
|
C-2-1
|
4.
|
We
are not in India and are not residents of India and are not withdrawing
Deposited Securities for the account or benefit of such a
person.
|
|
5.
|
We
understand and agree that as a condition of this withdrawal, we are
required to enter into the Right of First Refusal Agreement attached
hereto. Such Agreement has been duly executed by the
undersigned.
|
Very
truly,
[NAME OF
CERTIFYING ENTITY]
[By:______________________________
Title ]
C-2-2
Annex to
Exhibit C-2
Form
of
Right of First Refusal
Agreement
[Date]
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To:
|
Grasim
Industries Limited
|
Industry House
Bombay, India
Dear
Sirs:
As a
condition of and in consideration for the withdrawal of Shares pursuant to
Section 2.05 of the Deposit Agreement, the undersigned hereby agrees for the
express benefit of the Company that it will not, directly or indirectly, sell,
transfer, assign or otherwise dispose of its right, title or legal or beneficial
interest in or to any Shares (each a "Transfer") except as
permitted by applicable law (including applicable securities laws) and this
Agreement. For the avoidance of doubt, the term "Transfer" shall not
include the registration of the withdrawn Shares on the books of the Company in
the name of the undersigned or its nominee. (The person registered on
such books as the holder of the Shares is hereinafter referred to as the
"Holder").
NO
TRANSFER OF SHARES BY US MADE IN VIOLATION OF THIS LETTER SHALL BE GIVEN EFFECT
OR REGISTERED BY THE COMPANY.
Except as
otherwise defined herein, capitalized terms are used as defined in the Deposit
Agreement. For the purposes of this Agreement, the term "Shares" shall mean
(i) the equity shares of the Company withdrawn hereby pursuant to Section 2.05
of the Deposit Agreement (the "Original Shares"),
(ii) any equity shares distributed to the Holder by way of a bonus issue,
dividend or other free distribution on the Original Shares, (iii) any rights to
subscribe for additional equity shares or convertible debentures whose prices
are quoted in the Daily Quotation List of the Bombay Stock Exchange offered by
or on behalf of the Company to the Holder as a holder of the Original Shares and
(iv) any equity shares acquired by the Holder upon the exercise or otherwise by
way of the rights referred to in clause (iii).
The
Holder shall not Transfer any Share unless it shall have given a Company
Designee (as defined below) the opportunity to purchase such Share prior to such
Transfer, in the manner set forth below:
C-2-3
(a) The
undersigned, directly or through an agent, shall first send a written offer (the
"Offer") of the Shares proposed to be Transferred (the "Offered Shares") to
the Company on behalf of the Company Designees.
Such
Offer shall (i) identify the Offered Shares by certificate number and quantity,
(ii) identify the undersigned by name and address and provide a name and telex
and/or facsimile numbers to which any acceptance should be addressed (the "Acceptance Address")
and (iii) be made via tested telex to: ▇▇▇▇▇ ▇▇▇▇ IN or by facsimile with
confirmation of receipt to: (▇▇-▇▇) ▇▇▇-▇▇▇▇ or otherwise in writing delivered
to the Company, attention: ▇.▇. ▇▇▇▇▇. The Company may, by
notice to the undersigned, amend the preceding sentence to designate alternative
or additional telex or facsimile numbers or add other forms of communications or
addresses. The Company will use its best efforts to ensure that the
telex and facsimile numbers identified above are available at all times for use
by the undersigned.
(b) Each
Offer shall remain open for acceptance until 2:00 p.m. (Bombay time) on the
Bombay Business Day (as defined below) following the day in Bombay on which such
Offer is received by the Company, provided that if the
Offer is received after 12:00 noon or if the day of receipt is not a Bombay
Business Day, then the Offer shall remain open for acceptance until 2:00 p.m,
(Bombay time) on the second Bombay Business Day following the day on which such
offer was received. As used herein, "Bombay Business Day"
means a day on which the Bombay Stock Exchange is open for trading.
(c) The
Company may accept an Offer on behalf of one or more designee(s) selected by the
Company (each, a "Company Designee") by
sending a written acceptance (the "Acceptance") to the
Acceptance Address within the time such Offer is open, by means of tested telex
or facsimile with confirmation of receipt or otherwise in conformity with clause
(a) hereof.
(d) If such
an Acceptance is received within such time, then upon the receipt of such
Acceptance there shall be deemed to be a binding contract between the Company
and the undersigned that the undersigned shall sell and the Company shall cause
the purchase of the Offered Shares in accordance with the terms of this clause
(d). On the Bombay Business Day immediately following the date such
Acceptance was received and such contract became effective, the Company shall
cause the Company Designee(s) to purchase and the undersigned shall sell all
such Offered Shares at a price per Share equal to the Transfer
Price. No later than 3:00 p.m., Bombay time, on such following Bombay
Business Day, the undersigned shall deliver a certificate or certificates
representing all the Offered Shares, free and clear (except for this right of
first refusal) from all liens, encumbrances or claims whatsoever, along with an
instrument or instruments of transfer duly executed by the undersigned, at the
offices of the Company in Bombay (the "Bombay
Office"). Against delivery of such Offered Shares, the Company
shall cause the Company Designees to pay the Transfer Price by banker's check or
cash, without deduction or withholding of any amount. If the services
of a broker are to be utilized in such transfer, the undersigned shall have the
right to name such broker in the Offer. If the undersigned fails to
name a broker, then the Company or its designees shall name the
broker.
C-2-4
The term
"Transfer
Price" shall mean the closing price of a Share of the same class as an
Offered Share of the Company on the Bombay Stock Exchange on the Bombay Business
Day immediately preceding the day on which the Offer is received by the Company,
as set forth on Reuters Screen Page "IISD" or such other page as may replace
Page "IISD" on that service for the purpose of displaying the closing prices of
shares on the Bombay Stock Exchange or, if no such price is quoted on such page,
then as set forth in the Daily Quotation List of the Bombay Stock
Exchange.
(e) If we
receive a rejection by the Company of the Offer or we do not receive an
Acceptance during the time such Offer remains open or if the Company or the
Company Designee(s) shall fail to tender payment in full for the Offered Shares
in accordance with paragraph (d) above or the Shares cannot by law or regulation
(or pursuant to an exemption or similar approval granted by the government) be
transferred in the manner and at the times contemplated hereunder, we shall
thereafter be free to Transfer any or all of the Offered Shares from time to
time in our sole discretion. The Company agrees to execute any
certificate or other additional document we reasonably request to evidence our
compliance with this Agreement and our freedom to Transfer Offered Shares as
described in this paragraph (e). In particular, the Company
agrees that at any time following the expiration of any Offer without
acceptance, within two full Bombay Business Days after the delivery to the
Bombay Office, of the certificates representing any or all Offered Shares, the
Company will make available at the Bombay Office new certificates (in marketable
lots if we request) representing such Offered Shares, which certificates shall
not bear the Right of First Refusal Legend or certificates on which such legend
has been duly cancelled.
The
Company understands that the undersigned has agreed to sell Shares outside the
United States only in accordance with Regulation S, and therefore represents,
warrants and agrees that (i) each Company Designee is and will be outside the
United States at the time the Offer and Acceptance are made and the Offered
Shares are sold pursuant to clause (d) and further (ii) that no such designee is
a U.S. Person. Terms used in this paragraph have the same meaning as
in Regulation S.
This
Agreement is governed by, and shall be construed in accordance with, the laws
(without giving effect to the conflict of law principles thereof) of
India.
This
Agreement shall be effective and binding on the undersigned immediately upon
delivery to the Depositary, the Custodian or the Company, and the Company shall
be entitled to rely upon it, without any requirement that the Company
countersign or otherwise indicate its assent hereto.
Very
truly,
[BENEFICIAL
OWNER OF
WITHDRAWN
SHARES]
[By:______________________________
Name:
Title: ]
C-2-5
EXHIBIT
C-3
Certificate
and Agreement of Persons Acquiring GDRs
Upon Exchange of a Beneficial Interest in the Master GDR
Upon Exchange of a Beneficial Interest in the Master GDR
Pursuant
to Section 2.09 of the Deposit Agreement
[Date]
Citibank,
N.A., as Depositary
ADR
Department
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Grasim Industries
Limited
Dear
Sirs:
Reference
is hereby made to the Deposit Agreement, dated as of November 25, 1992 (the
"Deposit Agreement"), between Grasim Industries Limited, Citibank, N.A., as
Depositary and Holders and Beneficial Owners of Global Depositary Receipts
("GDRs") issued
thereunder. Capitalized terms used but not defined herein shall have
the meanings given them in the Deposit Agreement.
The
undersigned is acquiring a GDR certificate in exchange for a beneficial interest
in the Master GDR pursuant to Section 2.09 of the Deposit
Agreement. The undersigned hereby certifies and agrees as
follows:
|
/_/
|
A.
|
The
undersigned is acquiring a GDR certificate for its own account, without
transfer.
OR
|
|
/_/
|
B.
|
The
GDR certificate is being transferred (1)(a) to a person who the seller
reasonably believes is a qualified institutional buyer within the meaning
of Rule 144A under the Securities Act of 1933 purchasing for its own
account or for the account of a qualified institutional buyer that is
aware that the resale, pledge or other transfer is being made in reliance
on Rule 144A, (b) pursuant to any exemption from registration in
accordance with Rule 903 or Rule 904 of Regulation S under the Securities
Act of 1933 or (c) pursuant to an
effective registration statement under the Securities Act of 1933 and (2)
to a person who is not in India and who is not a resident of India or to
or for the account or benefit of such a
person.
|
C-3-1
Very
truly,
[NAME OF
CERTIFYING ENTITY]
[By:______________________________
Title: ]
C-3-2
EXHIBIT
C-4
Certification
and Agreement of Persons Acquiring
Beneficial
Interest in the Master GDR Upon
Exchange
of GDRs Pursuant to
Section
2.09 of the Deposit Agreement
[Date]
Citibank,
N.A., as Depositary
ADR
Department
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Grasim Industries
Limited
Dear
Sirs:
Reference
is hereby made to the Deposit Agreement, dated as of November 25, 1992 (the
"Deposit Agreement"), between Grasim Industries Limited, Citibank, N.A., as
Depositary and Holders and Beneficial Owners of Global Depositary Receipts
("GDRs") issued
thereunder. Capitalized terms used but not defined herein shall have
the meanings given them in the Deposit Agreement.
The
undersigned is acquiring a beneficial interest in the Master GDR in exchange for
a GDR pursuant to Section 2.09 of the Deposit Agreement. The
undersigned hereby certifies and agrees as follows:
|
/_/
|
A.
|
The
undersigned is acquiring a GDR certificate for its own account, without
transfer.
OR
|
|
/_/
|
B.
|
The
beneficial interest in the Master GDR is being transferred (l)(a) to a
person who the seller reasonably believes is a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act of 1933
purchasing for its own account or for the account of a qualified
institutional buyer that is aware that the resale, pledge or other
transfer is being made in reliance on Rule 144A, (b) pursuant to any
exemption from registration in accordance with Rule 903 or Rule 904 of
Regulation S under the Securities Act of 1933 or (c) pursuant to an effective
registration statement under the Securities Act of 1933 and (2) to a person who is not in India and
who is not a resident of India or to or for the account or benefit of such
a person.
|
C-4-1
Very
truly,
[NAME OF
CERTIFYING ENTITY]
[By:______________________________
Title: ]
C-4-2
EXHIBIT
D
CHARGES
OF THE DEPOSITARY
|
Service
|
Rate
|
By Whom Paid
|
|
| 1) |
Creation
of Global Depositary GDR program
|
Waived
|
N/A
|
| 2) |
Annual
maintenance fee for GDR program
|
Waived
|
N/A
|
| 3) |
Exchange
of book-entry position for GDR certificate or GDR certificate for
book-entry position
|
$50
per certificate
|
Party
receiving GDR certificate or book-entry position
|
| 4) |
Withdrawal
of Deposited Securities against surrender of GDRs
|
$5.00
per 100 GDSs (or fraction thereof)
|
Party
surrendering GDSs
|
| 5) |
Distribution
of dividends, sale or exercise of rights or other corporate action
involving distributions in respect of Deposited Securities
|
$0.02
per GDS (or fraction thereof)
|
Party
to whom distribution of dividends, or for whom the sale or exercise of
rights, is made
|
D-1
EXHIBIT
E
POSSIBLE
AMENDMENTS TO THE DEPOSIT AGREEMENT
The
Depositary and the Company agree to use reasonable efforts to adopt procedures
or to amend the Deposit Agreement so as to facilitate the ability of Holders and
Beneficial Owners generally to obtain favorable tax treatment in India with
respect to the GDSs and Shares. It is unclear under Indian tax law
what procedures will be necessary to obtain such tax treatment. The
Company will pay any fees, costs and expenses of the Depositary for amending the
Deposit Agreement for the foregoing purposes or any procedures or services which
the Depositary institutes in accordance with the Deposit Agreement with the
Company's consent.
The NASD
has proposed changes in the rules governing the PORTAL System and DTC has
proposed changes in its rules relating to securities eligible for transfer
pursuant to Rule 144A which would require that securities such as the GDSs be
included at all times in the PORTAL System as PORTAL securities to be eligible
for the book-entry services of DTC. In addition, the proposed PORTAL,
rules would require that NASD members report all trades in PORTAL securities
(sales to, or purchases from, a non-U.S. securities market) to the NASD. Such
reports would include a representation as to whether the transaction is being
made in reliance on Rule 144A under the Securities Act, and, if not, whether the
buyer is a QIB, a non-QIB institution or a non-QIB individual and the identity
of the counterparty, whether the transaction is on an agency or principal basis,
whether the transaction is a purchase or sale, whether a sale is a "short" sale,
the quantity of the security, the price of the security and a representation as
to the status of the buyer.
One
effect of these proposed rules, if they are adopted and become applicable to the
GDSs, could be to require that the GDSs trading outside the United States and
those trading inside the United States be separated into two groups of
non-fungible securities with different CUSIP numbers. In that case
separate depositary facilities might be required. Another effect of
these proposed changes would be to place the burden on persons trading PORTAL
securities to ensure that a transaction complies with the Securities
Act. Participants in the PORTAL System would no longer be assured of
compliance with Rule 144A under the Securities Act merely because they have
complied with the PORTAL market rules.
If the
proposed rules become effective prior to the closing of the Offering or
otherwise become applicable to the GDSs, the terms of the GDSs and the Deposit
Agreement may be amended to comply with the new requirements if possible and if
necessary.
E-1