Exhibit (c)(ii) AMENDMENT AGREEMENT
Exhibit
(c)(ii)
Amendment
Agreement, dated as of June 15, 1994 (the "Amendment Agreement"), amending and
supplementing the Deposit Agreement, dated as of November 25, 1992 (the "Deposit
Agreement"), among Grasim Industries Limited (the "Company"), Citibank, N.A., as
Depositary and all holders and beneficial owners of Global Depositary Receipts
issued thereunder.
WITNESSETH
WHEREAS,
the Company expects to offer 4,878,048 Partial Dividend GDSs (as defined below)
pursuant to a Subscription Agreement, dated as of June 9, 1994, between the
Company and Barclays de Zoete Wedd Limited and the other managers listed therein
(the "1994 Offering");
WHEREAS,
terms defined in the Deposit Agreement have the same meanings herein unless
otherwise defined:
NOW
THEREFORE, in consideration of the premises the parties agree as
follows:
1. Section
1.18. of the Deposit Agreement is hereby deleted and replaced by the
following:
"SECTION
1.18. Master
GDR. The term "Master GDR" will mean a Receipt registered in
the name of the nominee of DTC, evidencing all of the Book-Entry GDSs of a
particular class, as provided by Section 2.01 of this Agreement."
2. Section
2.01 of the Deposit Agreement is hereby deleted and replaced by the
following:
"SECTION
2.01 Book-Entry System; Form and
Transferabilty 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 other parties thereto.
So long
as the Book-Entry GDSs are eligible for book-entry settlement with DTC, unless
otherwise required by law, each class of Book-Entry GDSs representing Shares
deposited with the Custodian shall be represented by a single master GDR (a
"Master GDR") registered in the name of a nominee of DTC. Each Master
GDR shall be held by Citibank, N.A. or such other entity as is agreed
with DTC may hold a Master GDR as custodian for DTC. During any
period in which Book-Entry GDSs are represented by a Master GDR, ownership of
beneficial interests in a Master GDR shall be effected through, records
maintained by (i) DTC or its nominee for such Master GDR, or (ii) institutions
that have accounts with DTC. All references in this Agreement to
issuance or delivery of GDRs shall be deemed to include, where applicable,
adjustments in the records of the Depositary showing the number of Book-Entry
GDSs represented by a Master GDR.
If, at
any time when Book-Entry GDSs are evidenced by a Master GDR, DTC ceases to make
its book-entry settlement system available for such GDSs, the Company shall
consult with the Depositary regarding making other arrangements for book-entry
settlement. In the event that it is impracticable without undue
effort or expense to continue to have the Book-Entry GDSs available in
book-entry form, subject to the provisions of Section 2.09, the Company shall
instruct the Depositary to issue separate GDRs to the owners of beneficial
interests in a Master GDR with such additions, deletions and modifications to
this Agreement and to the form of GDR attached hereto as Exhibit B as the
Company and the Depositary may, from time to time, agree (which may include
requiring additional statements, documents and certifications as a condition of
issuing such separate GDRs).
(b) Form. GDRs
may be issued in denominations of any number of GDSs. The GDRs shall
be typewritten, in the case of a Master GDR, and otherwise shall be engraved,
printed or lithographed on steel-engraved borders, or in such other form as may
be agreed upon by the Company and the Depositary, and shall be substantially in
the form set forth in Exhibit B annexed to this Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. A
Master GDR shall bear such additional legend or legends as may be required by
DTC in order for it to accept the GDSs for its book-entry settlement
system. A Master GDR shall provide that it shall represent the
aggregate number of the applicable class of Book-Entry GDSs from time to time
indicated in the records of the Depositary and that the aggregate number of the
applicable class of Book-Entry GDSs evidenced thereby may from time to time be
increased or decreased by making adjustments to such records of the
Depositary.
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 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.
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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 or numbers 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 of other distributions or to any notice provided for
in this Agreement and neither the Depositary nor the Company shall have any
liability under this Agreement to any holder of a GDR unless such holder is a
Holder thereof."
3. The
following Section 2.11 is hereby added to the Deposit Agreement:
"SECTION
2.11 Partial Dividend
Shares. In the event that any Shares deposited hereunder
entitle holders of records thereof ("recordholders") as of the next dividend
record date to receive a per-share dividend in an amount different from that
payable to recordholders of Shares initially deposited hereunder, then the
following provisions shall apply:
(a) The term
"Full Dividend Shares" shall mean those Shares which will entitle recordholders
on the next dividend record date to receive a per-Share dividend in an amount
equal to that payable to recordholders of Shares initially deposited
hereunder. The term "Partial Dividend Shares" shall mean those Shares
which entitle recordholders as of the next dividend record date to receive a
per-Share dividend in an amount different from that payable to recordholders of
Full Dividend Shares.
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(b) Partial
Dividend Shares deposited hereunder shall be held by the Depositary or Custodian
in an account different from the account in which Full Dividend Shares deposited
hereunder are held.
(c) Partial. Dividend
Shares shall be represented by a class of GDSs ("Partial Dividend GDSs")
different from those representing Full Dividend Shares ("Full Dividend GDSs"),
and such Partial Dividend GDSs shall be evidenced by a class of GDRs ("Partial
Dividend GDRs") different from those evidencing Full Dividend GDSs ("Full
Dividend GDRs") and shall bear a legend with respect to their status as Partial
Dividend Shares. In addition, each class of Partial Dividend GDRs
will bear a CUSIP number different from those borne by Full Dividend GDRs and
other classes of Partial Dividend GDRs.
(d) Whenever
Partial Dividend Shares become Full Dividend Shares, the Depositary shall cause
the Custodian to transfer such Shares into the account in which other Full
Dividend Shares are held, the Partial Dividend GDSs representing such Shares
shall automatically convert into Full Dividend GDSs (the New Full Dividend
GDSs"), the Depositary shall call for the surrender of the Partial Dividend GDR
or GDRs evidencing such New Full Dividend GDSs and, upon surrender thereof,
shall (i) either issue new Full Dividend GDRs to evidence such New Full Dividend
GDSs or (ii) reflect on its records and notify DTC that such New Full Dividend
GDSs are evidenced by the Master GDR evidencing all other Full Dividend GDSs, as
the case may be.
(e) Holders
and Beneficial Owners of Full Dividend GDSs shall be entitled to receive only
dividends and other distributions received in respect of Full Dividend
Shares. Holders and Beneficial Owners of Partial Dividend GDSs shall
be entitled to receive only dividends and other distributions received in
respect of Partial Dividend Shares.
(f) All other
provisions of this Deposit Agreement shall apply to Partial Dividend Shares,
Partial Dividend GDSs and Partial Dividend GDRs, subject to this Section
2.11."
4. Where the
context requires, references to "the Master GDR" in the Deposit Agreement are
hereby deleted and replaced with "a Master GDR" or "the Master GDRs", as
appropriate.
5. Exhibit A
to the Deposit Agreement is hereby deleted and replaced with the Exhibit A
appended hereto.
6. As
provided for by Section 2.02(v) of the Deposit Agreement, the Custodian will
accept for deposit the Partial Dividend Shares underlying the Partial Dividend
GDSs to be offered in the 1994 Offering.
7. Pursuant
to Section 2.11, the GDRs (including any Master GDR) representing Partial
Dividend GDSs offered in the 1994 Offering will bear, in addition to other
legends required by the Deposit Agreement or agreed to between the Company and
the Depositary, the following legend;
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"THIS
SECURITY EVIDENCES THE RIGHT TO RECEIVE SHARES THAT WERE ISSUED AS OF 15th JUNE,
1994 AND WHICH ACCRUE DIVIDENDS ONLY FROM THAT DATE. ACCORDINGLY, THE
HOLDER OF THIS SECURITY WILL BE ENTITLED TO THAT PORTION OF THE DIVIDENDS PAID
FOR THE FINANCIAL YEAR ENDING 31st MARCH, 1995 WHICH CORRESPONDS TO THE PORTION
OF SUCH FINANCIAL YEAR FOLLOWING THEIR ISSUE DATE WHICH IS 15th JUNE,
1994. THE HOLDER OF THIS SECURITY WILL BE ENTITLED TO FULL DIVIDEND
RIGHTS BEGINNING WITH THE DIVIDENDS PAID IN RESPECT OF THE FINANCIAL YEAR
BEGINNING 1st APRIL, 1995. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, SHARES REPRESENTED BY THIS SECURITY MAY NOT BE WITHDRAWN PRIOR TO 30th
JULY, 1994."
8. The
Master GDR representing Partial Dividend GDSs offered in the 1994 Offering will
be substantially in the form of Exhibit B with such insertions, modifications,
and omissions as the Company and Depositary may agree, including such as are
necessary to effect the provisions hereof.
9. Notwithstanding
Section 2.05 of the Deposit Agreement, Partial Dividend GDSs offered in the 1994
Offering may not be surrendered for withdrawal of underlying Partial Dividend
Shares prior to July 30, 1994.
10. Except as
expressly provided herein, the execution, delivery and effectiveness of this
Amendment Agreement shall not operate as a modification or waiver of any term of
the Deposit Agreement. The Deposit Agreement, as amended and
supplemented by this Amendment Agreement, shall continue in full force and
effect and is hereby-ratified and confirmed.
11. This
Amendment 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.
12. This
Amendment Agreement shall be interpreted and rights hereunder and provisions
hereof shall be governed by the laws (without giving effect to conflict of law
principles thereof) of the State of New York.
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IN
WITNESS WHEREOF, GRASIM INDUSTRIES LIMITED and CITIBANK, N.A. have
duly executed this Amendment Agreement as of the day and year first above set
forth and all Holders and Beneficial owners shall become parties hereto in
accordance with 6.01 of the Deposit Agreement, or upon acceptance by them of
GDRs issued in accordance with the terms of the Deposit Agreement or upon
acquisition of any beneficial interests therein.
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GRASIM
INDUSTRIES LIMITED
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By:
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/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
Whole Time Director
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CITIBANK,
N.A.
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By:
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/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Title:
Vice President
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