EXHIBIT 1.1
STERLITE INDUSTRIES (INDIA) LIMITED
[-] AMERICAN DEPOSITARY SHARES
EACH REPRESENTING
1 EQUITY SHARE
PAR VALUE RS. 2 PER SHARE
UNDERWRITING AGREEMENT
[-], 2007
[-], 2007
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Citigroup Global Markets Inc.
as Representatives of the several Underwriters
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Ladies and Gentlemen:
Sterlite Industries (India) Limited (the "COMPANY"), a public limited
company incorporated under the laws of the Republic of India ("INDIA"), proposes
to issue and sell equity shares, par value Rs. 2 per share, of the Company (the
"EQUITY SHARES") in connection with an ADS Offering (as hereinafter defined).
The "ADS OFFERING" consists of an offering and sale of American Depositary
Shares, each representing one Equity Share, in the United States, Canada, Japan
and certain other selected jurisdictions in the world other than India.
It is understood that:
1. The Company and you are entering into this Agreement providing for
the purchase by the Underwriters named in Schedule I hereto (the "UNDERWRITERS")
for whom you are acting as representatives (the "REPRESENTATIVES"), an aggregate
of [-] American Depositary Shares (the "FIRM ADSS") and, at the election of the
Representatives on behalf of the Underwriters, up to [-] additional American
Depositary Shares (the "OPTIONAL ADSS"). The Firm ADSs and the Optional ADSs are
herein collectively referred to as the "ADSs" and the Equity Shares represented
thereby as the "SHARES".
2. The ADS Offering includes a public offering without listing of ADSs
in Japan (the "JAPANESE POWL"). The Japanese POWL will be made pursuant to the
Japanese Registration Statement and the Japanese Prospectus (as hereinafter
defined).
Sterlite Industries (India) Limited
Underwriting Agreement
2
All references to "U.S. DOLLARS", "US$" or "$" are to United States dollars
and all references to "RS." are to Indian rupees.
In connection with the ADS Offering, the Company has filed with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
on Form F-1 (No. 333-138739), including a prospectus, relating to the Shares, a
registration statement on Form F-6 (No. 333-139102), relating to the American
Depositary Shares representing Equity Shares, and a registration statement on
Form 8-A (No. 001-33175) relating to the registration of the Shares and the
ADSs. The registration statement on Form F-1 related to the Shares, as amended
at the time it becomes effective, including all exhibits thereto and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT"; the prospectus in the form first used to confirm sales of ADSs (or
in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the "PROSPECTUS". The registration statement on Form
F-6 relating to the American Depositary Shares representing Equity Shares, as
amended at the time it becomes effective, including all exhibits thereto, is
hereinafter referred to as the "ADS REGISTRATION STATEMENT". The registration
statement on Form 8-A relating to the Shares and the ADSs, as amended at the
time it becomes effective, including all exhibits thereto, is hereinafter
referred to as the "8-A REGISTRATION STATEMENT". If the Company has filed an
abbreviated registration statement to register additional Equity Shares pursuant
to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed
to include such Rule 462 Registration Statement.
For purposes of this Agreement, "FREE WRITING PROSPECTUS" has the meaning
set forth in Rule 405 under the Securities Act, "TIME OF SALE PROSPECTUS" means
the preliminary prospectus dated [-] (the "PRELIMINARY PROSPECTUS"), together
with the free writing prospectuses, if any, each identified in Schedule II
hereto and "BROADLY AVAILABLE ROAD SHOW" means a "bona fide electronic road
show" as defined in Rule 433(h)(5) under the Securities Act that has been made
available without restriction to any person. As used herein, the terms
"Registration Statement", "preliminary prospectus", "Time of Sale Prospectus"
and "Prospectus" shall include the documents, if any, incorporated by reference
therein, and, if applicable, any prospectus wrapper prepared in connection
therewith.
In connection with the Japanese POWL, the Company has prepared and filed
with the Director of Kanto Local Finance Bureau of the Ministry of Finance of
Japan (the "DKLFB") a securities registration statement dated [-], 2007 with
respect to the Japanese POWL and its exhibits, and amendments to such securities
registration statement pursuant to the Securities and Exchange Law of Japan (the
"SELJ") and a further amendment (the "POWL FINAL AMENDMENT") to such securities
registration statement in the form heretofore delivered to the Representatives
and Nomura Singapore Limited ("NOMURA SINGAPORE") is proposed to be filed by the
Company with the DKLFB promptly after the execution of this Agreement (such
securities registration statement, exhibits, and all such amendments,
collectively, the "JAPANESE SECURITIES REGISTRATION STATEMENT"); the Company has
prepared a preliminary prospectus,
Sterlite Industries (India) Limited
Underwriting Agreement
3
including its amendments, with respect to the Japanese POWL (the "JAPANESE
PRELIMINARY PROSPECTUS") and intends to prepare a further amendment to the
Japanese Preliminary Prospectus which together with the Japanese Preliminary
Prospectus will form a final Japanese prospectus (the "JAPANESE PROSPECTUS"; and
together with the Japanese Preliminary Prospectus and the Japanese Securities
Registration Statement, the "JAPANESE DISCLOSURE DOCUMENTS"); the Japanese
Disclosure Documents have been or will be prepared in the Japanese language in
accordance with the SELJ, in principle, based on the information included or
incorporated by reference in the Prospectus, with such omissions and additions
as appropriate for the purpose of the Japanese POWL.
The ADSs are to be issued pursuant to a deposit agreement, dated as of [-],
2007 among the Company, Citibank, N.A. as depositary (the "DEPOSITARY"), and
registered holders and beneficial owners from time to time of the American
Depositary Receipts (the "ADRS") issued by the Depositary and evidencing the
American Depositary Shares (the "DEPOSIT AGREEMENT"). Pursuant to the Deposit
Agreement, Citibank, N.A., Mumbai Branch has been appointed as the domestic
custodian in India (the "INDIAN DOMESTIC CUSTODIAN") to hold Equity Shares on
behalf of the Depositary. Each American Depositary Share of the Company will
initially represent the right to receive one Equity Share deposited pursuant to
the Deposit Agreement.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
Representations and Warranties of the Company. The Company represents and
warrants to and agrees with each of the Underwriters that:
(i) Effectiveness and No Stop Order. Each of the Registration
Statement, the ADS Registration Statement and the 8-A Registration
Statement has become effective, and no stop order suspending the
effectiveness of the Registration Statement, the ADS Registration Statement
or the 8-A Registration Statement is in effect and no proceedings for such
purpose are pending before or threatened by the Commission.
(ii) No Stop Order. No order preventing or suspending the use of
any preliminary prospectus has been issued by the Commission and each
preliminary prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Securities Act, and the rules
and regulations of the Commission thereunder.
(iii) Offering Document Compliance. (A) Each of the Registration
Statement, the ADS Registration Statement, and the 8-A Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, at each Time of Delivery, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
not misleading, (B) each of the Registration Statement, the ADS
Registration Statement, the 8-A Registration Statement and the Prospectus,
when it became effective or as of its issue date, as applicable, and at
each Time of Delivery, complied or will comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and the applicable rules and regulations of the Commission
thereunder, as
Sterlite Industries (India) Limited
Underwriting Agreement
4
applicable, and (C)(1) the Time of Sale Prospectus complies in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder, and does not, and at the time of each sale of
the ADSs in connection with the ADS Offering when the Prospectus is not yet
available to prospective purchasers and at each Time of Delivery (as
defined in Section 4(a) below), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (2) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(D) the Prospectus, as of its issue date, at each Time of Delivery and as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, ADS Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(iv) Free Writing Prospectus. Each free writing prospectus
identified in Schedule II hereto, as of its issue date and at all
subsequent times through the completion of the ADS Offering did not, does
not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement, the
ADS Registration Statement, the 8-A Registration Statement, the Prospectus,
any preliminary prospectus or the Japanese Disclosure Documents. Each free
writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or
on behalf of or used or referred to by the Company complies, or will
comply, in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in Schedule II
hereto, and electronic road shows, if any, furnished to the Representatives
before first use, the Company has not prepared, used or referred to, and
will not, without the prior consent of the Representatives, prepare, use or
refer to, any free writing prospectus.
(v) Status as Not Ineligible Issuer. The Company is not an
"ineligible issuer" in connection with the offering pursuant to Rules 164,
405 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities
Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder.
(vi) No Distribution of Other Offering Material. Neither the
Company nor any Significant Subsidiary (each of which is listed in Schedule
III hereto and individually referred to as a "SIGNIFICANT SUBSIDIARY") or
affiliates has distributed, nor will it
Sterlite Industries (India) Limited
Underwriting Agreement
5
distribute prior to the later of the Second Time of Delivery (as defined
below) and the completion of the Underwriters' distribution of the ADSs,
any offering material in connection with the ADS Offering (A) in the United
States other than the Time of Sale Prospectus, the Prospectus, the
Registration Statement, the ADS Registration Statement, the 8-A
Registration Statement and any free writing prospectus identified on
Schedule II hereto and (B) in Japan other than the Japanese Disclosure
Documents.
(vii) No Material Adverse Change. There has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business, management, operations or prospects of the Company
and its Significant Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, from that set forth in the Time of Sale
Prospectus.
(viii) Due Organization and Good Standing. The Company has been
duly incorporated and is validly existing as a public limited company under
the laws of India and has the corporate power and authority to own or lease
its properties and to conduct its business as described in each of the Time
of Sale Prospectus, the Prospectus and the Japanese Disclosure Documents;
each Significant Subsidiary of the Company has been duly incorporated and
is validly existing as a company under the laws of its jurisdiction of
incorporation, each with corporate power and authority to own or lease its
properties and conduct its respective business as described in each of the
Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents; and each of the Company and its Significant Subsidiaries is duly
qualified to transact business in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, be reasonably
expected to have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business, management, operations or
prospects of the Company and its Significant Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "MATERIAL
ADVERSE EFFECT").
(ix) Real Properties, Encumbrances and Leases. Each of the Company
and its Significant Subsidiaries has good and marketable title to all real
property and good and marketable title to all personal property owned by
it, free and clear of all liens, encumbrances and defects except such as
are described in each of the Time of Sale Prospectus, the Prospectus and
the Japanese Disclosure Documents, or such as would not have a Material
Adverse Effect; and any real property and buildings held under lease by the
Company and its Significant Subsidiaries are held by it under valid,
subsisting and enforceable leases, with such exceptions as are not material
to its business or do not materially interfere with the use made of such
property and buildings by the Company, except as described in each of the
Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents.
(x) Capitalization. The Company has an authorized capitalization
as set forth in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents; and all of the issued shares of capital
stock of the Company (including the Shares) have been duly and validly
authorized and issued, and were not issued in
Sterlite Industries (India) Limited
Underwriting Agreement
6
violation of any preemptive or similar rights of any person or entity
against the Company; all of the Shares when delivered in accordance with
the terms of this Agreement, will be fully paid; all of the issued and
outstanding Equity Shares (including the Shares) conform to the description
of the Equity Shares contained in each of the Time of Sale Prospectus, the
Prospectus and the Japanese Disclosure Documents; all of the issued and
outstanding Equity Shares have been duly listed and admitted for trading on
the Bombay Stock Exchange Limited and the National Stock Exchange of India
Limited (the "INDIAN EXCHANGES") (and are also listed on the Calcutta Stock
Exchange Association Limited, though the Company has applied to have its
Equity Shares delisted from such exchange); the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive
rights, including, but not limited to, any such rights under Section 81 of
the Indian Companies Act, 1956 (the "INDIAN COMPANIES ACT") or other rights
to acquire the Shares or the ADSs in connection with the transactions
contemplated hereby or otherwise; except as described in each of the Time
of Sale Prospectus, the Prospectus and the Japanese Disclosure Documents,
there are no outstanding securities convertible into or exchangeable for,
or warrants, rights or options to purchase from the Company or any of its
Significant Subsidiaries, or obligations of the Company to issue Equity
Shares or any other class of capital stock of the Company, in connection
with completion of the transactions contemplated hereby; the Shares may be
freely deposited by or on behalf of the Company with the Indian Domestic
Custodian which shall form the underlying shares for the ADRs to be issued;
any restrictions on the future deposit of Equity Shares are fully and
accurately disclosed in each of the Time of Sale Prospectus, the Prospectus
and the Japanese Disclosure Documents; there are no restrictions on
subsequent transfers of the ADSs under the laws of India and of the United
States except as described in each of the Time of Sale Prospectus and the
Prospectus; all of the issued shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and were not
issued in violation of any preemptive or similar rights of any person or
entity against such Significant Subsidiary; and the capital stock of each
Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of all liens, encumbrances, equities
or claims.
(xi) No Agreement to File a Registration Statement. No shareholder
of the Company or of any Significant Subsidiary or any other person has any
registration or other similar rights to have any of the Company's
securities registered for sale under the Registration Statement or the ADS
Registration Statement or included in the ADS Offering.
(xii) Authorization of the Deposit Agreement. The Deposit
Agreement has been duly authorized, executed and delivered by the Company,
and, assuming due authorization, execution and delivery thereof by the
Depositary, constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfer), reorganization, moratorium or similar laws affecting enforcement
of creditors' rights and except as enforcement thereof is subject to
general equity principles (regardless of whether enforcement is considered
in a proceeding in equity or at law); upon issuance by the Depositary of
ADRs evidencing the ADSs against the deposit of the
Sterlite Industries (India) Limited
Underwriting Agreement
7
Shares in respect thereof in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and the persons in
whose names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement; the Deposit Agreement and
the ADRs conform in all material respects to the descriptions thereof
contained in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents.
(xiii) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xiv) Necessary Authorizations for Transactions. No action, consent,
authorization, approval, order, certificate, license or permit of,
clearance by, or filing, registration or qualification with any court or
administrative, governmental or regulatory agency or body or stock exchange
authority having jurisdiction over the Company is required for the
performance of its obligations under this Agreement and the Deposit
Agreement, or the transactions contemplated hereby and thereby, other than
such (A) as have been obtained or made prior to the date of this Agreement
and are in full force and effect or (B) as may be required by the
securities or Blue Sky laws of the various U.S. states in connection with
the offer and sale of the ADSs. All such authorizations (including
authorizations by and on behalf of the Company) necessary for performance
by the Company of its obligations under this Agreement, the Deposit
Agreement, or the transactions contemplated hereby and thereby, have been
obtained and are in full force and effect.
(xv) No Restrictions or Withholding Taxes on Dividends. There are no
restrictions under Indian law nor any approvals currently required in India
(including any foreign exchange or foreign currency approvals) in order for
the Company to pay dividends or other distributions declared by the Company
to holders of Equity Shares, or ADSs, including the Depositary, or for the
conversion by the Depositary of any dividends paid in Indian rupees to U.S.
dollars or the repatriation thereof out of India, except as set forth in
each of the Time of Sale Prospectus, the Prospectus and the Japanese
Disclosure Documents. No such dividends and other distributions, including
such dividends to persons not resident in India, are currently subject to
withholding or other taxes, levies or charges under the laws and
regulations of the Republic of India, except as set forth in each of the
Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents.
(xvi) No Defaults or Legal Conflicts. The sales of the ADSs
contemplated herein and the deposit of the Shares with the Indian Domestic
Custodian on behalf of the Depositary against issuance of the ADRs
evidencing the ADSs and the compliance by the Company with all of the
provisions of this Agreement and the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated do not and
will not (A) result in any violation of the Company's or any of its
Significant Subsidiaries' certificate of incorporation, memorandum of
association and articles of association or other organizational document
(collectively, the "CHARTER DOCUMENTS") or (B) contravene or result in a
default under (1) any provision of applicable law or regulation (including,
without limitation, any applicable Indian law or regulation relating to the
offer
Sterlite Industries (India) Limited
Underwriting Agreement
8
and sale of the Shares and ADSs), (2) any agreement binding upon the
Company or any Significant Subsidiary or (3) any judgment, order or decree
of any local or other court or public, governmental or regulatory agency or
body or stock exchange authority having jurisdiction over the Company, or
any Significant Subsidiary, or any of their assets, except for such
violations or contraventions under clause (B)(2) that would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(xvii) No Violation of Existing Agreements or Laws. None of the
Company or any Significant Subsidiary is (A) in violation of its respective
Charter Documents, (B) in default (or, with the giving of notice or lapse
of time, would be in default) under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to which it
is a party or by which it may be bound, or to which any of its property or
assets is or may be subject (collectively, "AGREEMENTS"), except as
disclosed in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, or (C) in violation or default of any
provision of applicable law or regulation (including, without limitation,
any applicable law or regulation regarding money laundering or corruption
or economic sanctions), all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002 or any Indian law or regulation relating to the offer and sale of
the Shares and ADSs, or any judgment, order or decree of any court or
governmental, administrative or regulatory agency or body or stock exchange
authority having jurisdiction over it or any of its assets, as applicable,
except where such violation or default under clause (B) would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(xviii) Stamp Duty and Other Transaction Taxes. Other than as set
forth in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, no transaction tax, issue tax, stamp duty or
other issuance or transfer tax or duty or withholding tax is or will be
payable by or on behalf of the Underwriters, or otherwise imposed on any
payments made to the Underwriters, to the Government of India or any
political subdivision or taxing authority thereof or therein in connection
with (A) the deposit of the Shares by the Company with the Indian Domestic
Custodian on behalf of the Depositary against the issuance of ADRs
evidencing ADSs, (B) the sale and delivery on behalf of the Company of the
ADSs to or for the respective accounts of the Underwriters as set forth in
each of the Time of Sale Prospectus, the Prospectus and the Japanese
Disclosure Documents, and pursuant to the terms of this Agreement, (C) the
sale and delivery outside of India by the Underwriters of the ADSs to the
purchasers thereof in the manner contemplated pursuant to the terms of this
Agreement or (D) any other transaction or payment contemplated by this
Agreement or the Deposit Agreement.
(xix) No Stabilization Action. Neither the Company nor any
Significant Subsidiary or any of their respective affiliates has taken,
directly or indirectly, any action (excluding any actions taken by the
Underwriters) which was designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Shares and ADSs.
Sterlite Industries (India) Limited
Underwriting Agreement
9
(xx) Statements in Prospectus. The statements set forth in each of
the Time of Sale Prospectus and the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Shares" and the corresponding descriptions contained in the Japanese
Disclosure Documents, insofar as they purport to constitute a summary of
the terms of the Equity Shares and the ADSs, respectively, and under the
first, seventh and eight risk factors under the heading "Risk Factor--Risks
Relating to the ADS Offering and our ADSs," and the captions
"Enforceability of Certain Civil Liabilities," "Comparison of Shareholders'
Rights," "Comparison of Corporate Governance Standards," "The Indian
Securities Market," "Government of India Approvals," and "Regulations and
Restrictions on Foreign Ownership of Indian Securities," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects.
(xxi) No Pending Legal Proceedings. There are no legal, arbitral,
governmental proceedings pending or, to the knowledge of the Company,
threatened, to which the Company or any Significant Subsidiary is a party
or to which any of the properties of the Company or any Significant
Subsidiary is subject (A) other than proceedings described in all material
respects in the Time of Sale Prospectus, the Prospectus and the Japanese
Disclosure Documents, and proceedings that would not have a Material
Adverse Effect on the Company or any Significant Subsidiary, taken as a
whole, or on the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated by the
Time of Sale Prospectus, or (B) that are required to be described in the
Time of Sale Prospectus, the Prospectus, the Registration Statement, the
ADS Registration Statement or the Japanese Disclosure Documents and are not
so described.
(xxii) Investment Company Act. The Company is not, and after
giving effect to the ADS Offering and the application of the proceeds
thereof, will not be required to register as an "investment company" under
the Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT").
(xxiii) Necessary Authorizations to Conduct Businesses. Except as
set forth in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, each of the Company and its Significant
Subsidiaries has obtained all necessary certificates, authorizations,
licenses, concessions, approvals, orders or permits (collectively,
"GOVERNMENTAL LICENSES") issued by, and has made all declarations and
filings with, all local and other governmental authorities, all
self-regulatory organizations, all courts and other tribunals and all
appropriate regulatory agencies or bodies, or governmental agencies,
necessary (A) to own, lease or license, as the case may be, and to operate
and use its properties and assets, (B) to conduct the businesses now
conducted by it in the manner described in each of the Time of Sale
Prospectus, the Prospectus and the Japanese Disclosure Documents and (C) to
own all of its equity interests in a person or entity, amounting to 5% or
more, except where the failure so to possess, declare or file would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; except as set forth in the Time of Sale
Prospectus, the Prospectus and the Japanese Disclosure Documents, all of
the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure
Sterlite Industries (India) Limited
Underwriting Agreement
10
of such Governmental Licenses to be in full force and effect would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and neither the Company nor any Significant
Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, reasonably be expected to result in a Material
Adverse Effect.
(xxiv) Independent Registered Public Accountants. Deloitte ▇▇▇▇▇▇▇
& Sells, Mumbai, India, who have certified the United States generally
accepted accounting principles ("U.S. GAAP") consolidated financial
statements, are registered with the Public Company Accounting Oversight
Board ("PCAOB") and are independent public or certified public accountants
with respect to the Company and its Significant Subsidiaries as required by
the Securities Act and the applicable published rules and regulations of
the Commission thereunder.
(xxv) Financial Statements. (A) The U.S. GAAP audited consolidated
financial statements and the unaudited consolidated financial statements of
the Company included in the Registration Statement, the Time of Sale
Prospectus, the Prospectus and the Japanese Disclosure Documents, together
with the related schedules and notes, present fairly, in all material
respects, the financial positions of the Company and its consolidated
subsidiaries as of the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; the said financial statements have
been prepared in conformity with U.S. GAAP applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included
in the Registration Statement, the Time of Sale Prospectus, the Prospectus
and the Japanese Disclosure Documents present fairly in accordance with
U.S. GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Registration Statement, the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the U.S. GAAP audited financial statements and the U.S. GAAP
unaudited financial statements included in the Registration Statement, the
Time of Sale Prospectus, and the Prospectus and the Japanese Disclosure
Documents; and
(B) The Indian GAAP selected financial information included in the
Registration Statement, the Time of Sale Prospectus and the Prospectus
presents fairly in all material respects the information shown therein and
have been compiled on a basis consistent with that of the Indian GAAP
unaudited financial statements of the Company.
(xxvi) Intellectual Property Rights. The Company and its
Significant Subsidiaries own, or duly applied for the issuance of, all the
patents, trademarks, trade names, if any, and copyrights (or licenses such
rights pursuant to valid and subsisting licenses) necessary for the conduct
of their business as described in each of the Time of Sale Prospectus, the
Prospectus and the Japanese Disclosure Documents, except where the failure
to own or license the same would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and neither
the Company
Sterlite Industries (India) Limited
Underwriting Agreement
11
nor any Significant Subsidiary has received any notice of infringement by,
or conflict with, any other person of any such patents, trademarks, trade
names, if any, or copyrights owned or licensed by the Company or a
Significant Subsidiary the result of which infringement could result in a
Material Adverse Effect.
(xxvii) Enforcement of Rights in India by Holders of ADSs. Under
the laws of India, each registered holder or beneficial owner of ADSs shall
be entitled, subject to the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee registered as representative
of the holders of the ADSs in a direct suit, action or proceeding against
the Company. It is not necessary in order to enable any owner of ADSs to
enforce any of its rights that such owner of ADSs be licensed, qualified or
entitled to do business in India.
(xxviii) Insurance. Each of the Company and its Significant
Subsidiaries maintains insurance of the type and in the amounts which the
Company believes to be reasonable and customary for its business. All such
insurance is in full force and effect, except in such cases as the failure
to carry or be covered by insurance would not result in a Material Adverse
Effect. The Company has no reason to believe that it or any Significant
Subsidiary will not be able to (A) renew its existing insurance coverage as
and when such coverage expires or (B) obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a Material
Adverse Effect.
(xxix) No Filing, Stamp Duty or Filing Fees. To ensure the legality,
validity, enforceability or admissibility into evidence in a legal or
administrative proceeding in India of each of this Agreement or the Deposit
Agreement, it is not necessary that this Agreement or the Deposit Agreement
be filed or recorded with any court or other authority in India or that any
registration tax, stamp duty or similar tax be paid in India on or in
respect of any of this Agreement, the Deposit Agreement or any other
document to be furnished hereunder or thereunder, other than court costs,
including (without limitation) filing fees and deposits to guarantee
judgment required by a Indian court of law and except that this Agreement
and the Deposit Agreement will only be admissible in evidence in India for
purposes of enforcement if they are duly stamped in accordance with the
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ and any certificate representing the Shares would be
required to be stamped with applicable stamp duties in India.
(xxx) Taxes. The Company and each Significant Subsidiary has
prepared and timely filed all tax returns, reports and other related
information which are required to be filed by or with respect to it or has
properly requested extensions thereof, except where the failure to do so
would not result in a Material Adverse Effect. Except as described in each
of the Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents, all taxes, assessments, fees and other governmental charges due
on such returns or pursuant to any assessment received by the Company and
each Significant Subsidiary or which are imposed upon it or on any of its
properties or assets or in respect of any of its business, income or
profits have been fully paid when due, other than taxes or charges that are
being contested in good faith by appropriate proceedings and except where
the failure to do so would not result in a Material Adverse Effect. Except
as
Sterlite Industries (India) Limited
Underwriting Agreement
12
described in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, the Company has made adequate charges,
accruals and reserves in respect of all such tax liabilities.
(xxxi) Transactions with Affiliates. All material transactions
between the Company and its related parties are fully and fairly described
in all material respects in the Time of Sale Prospectus, the Prospectus and
the Japanese Disclosure Documents, and each such transaction is on terms no
less favorable to the Company as could be obtained with an unaffiliated
third party.
(xxxii) Internal Accounting Controls. The Company and each Significant
Subsidiary maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with U.S. GAAP and Indian GAAP, as applicable, and
to maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization and
(D) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences; and the Company and each Significant Subsidiary keeps books,
records, and accounts, which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets of such entity. Except
as described in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, since the end of the Company's most recent
audited fiscal year, there has been (i) no material weakness in the
Company's internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company's internal control over financial
reporting.
(xxxiii) Financial Condition and Critical Accounting Policies. The
section entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in each of the Time of Sale
Prospectus, the Prospectus and the corresponding descriptions in the
Japanese Disclosure Documents complies, in all material respects, with the
relevant securities laws and the Commission's rules and interpretations
governing the disclosure of the Company's financial condition and results
of operations and critical accounting policies.
(xxxiv) Valid Choice of Law, Submission to Jurisdiction and
Appointment of Process Agent. The choice of the laws of the State of New
York as the governing law of this Agreement and the Deposit Agreement is a
valid choice of law under the laws of India and courts of India should
honor this choice of law. The Company has the power to submit, and pursuant
to this Agreement and the Deposit Agreement has validly and irrevocably
submitted, to the personal jurisdiction of the United States District Court
for the Southern District of New York and the Supreme Court of New York,
New York County (including, in each case, any appellate courts therefrom)
in any suit, action or proceeding against it arising out of or related to
this Agreement or the Deposit Agreement or with respect to its obligations,
liabilities or any other matter arising out of or in connection with the
sale of the ADSs to the Underwriters and has validly and irrevocably
Sterlite Industries (India) Limited
Underwriting Agreement
13
waived any objection to the venue of a proceeding in any such court, and
the Company has the power to designate, appoint and empower, and pursuant
to this Agreement and the Deposit Agreement, has validly appointed the
Authorized Agent named in Section 15 of this Agreement, and the process
agent named in the Deposit Agreement for the purposes described therein,
and service of process effected in the manner set forth in Section 15 of
this Agreement and the Deposit Agreement will be effective to confer valid
personal jurisdiction over the Company.
(xxxv) Absence of Labor Dispute. To the knowledge of the Company, no
labor dispute with the employees of the Company or any Significant
Subsidiary exists or is imminent except as described in each of the Time of
Sale Prospectus, the Prospectus and the Japanese Disclosure Documents; and
the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could have a Material Adverse Effect on
the Company and its Significant Subsidiaries, taken as a whole.
(xxxvi) No Immunity Under Indian Law. The Company is subject to
civil and commercial law and to suit in India with respect to its
obligations under this Agreement, the Deposit Agreement, and the ADRs; the
execution and delivery by the Company and the performance by the Company of
its obligations thereunder constitute private and commercial acts rather
than governmental or public acts and neither the Company nor any of its
properties, assets or revenues has any right of immunity under Indian law
from any legal action, suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any Indian court, from service of process,
attachment upon or prior to judgment, or attachment in aid of execution of
judgment or from execution of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of a
judgment, in any such court, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with this
Agreement, the Deposit Agreement and the ADRs, and, to the extent that the
Company or any of the Company's properties, assets or revenues may have or
may hereafter become entitled to any such right of immunity in any such
court in which proceedings may at any time be commenced, the Company has
waived or has agreed to waive such right to the extent permitted by law.
(xxxvii) No Subsequent Material Liability or Change. Subsequent to
the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents, (A) the Company and its Significant
Subsidiaries have not (1) incurred any material liability or obligation,
direct or contingent, (2) entered into any material transaction or (3)
entered into any material agreement, oral or written, including but not
limited to any material letter of intent, memorandum of understanding or
memorandum of agreement, in relation to an acquisition of or investment in
any company or entity; (B) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (C) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company and its Significant Subsidiaries, except in each
Sterlite Industries (India) Limited
Underwriting Agreement
14
case as described in each of the Registration Statement, the Time of Sale
Prospectus, the Prospectus and the Japanese Disclosure Documents,
respectively.
(xxxviii) No Prior Equity Share Issuance. Except as described in the
Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents, the Company has not sold, issued or distributed any Equity
Shares during the six-month period preceding the date hereof, including any
sales pursuant to Rule 144A under, or Regulation D or S of, the Securities
Act, other than Equity Shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(xxxix) Environmental Laws. The Company and each Significant
Subsidiary (A) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(C) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a Material Adverse
Effect on the Company and its Significant Subsidiaries, taken as a whole,
and except as disclosed in each of the Time of Sale Prospectus, the
Prospectus and the Japanese Disclosure Documents.
(xl) Costs Related to Environmental Laws. There are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect on the Company and its
Significant Subsidiaries, taken as a whole, and except as disclosed in each
of the Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents.
(xli) OFAC and Sanctions Laws and Regulations. Neither the Company
nor any Significant Subsidiary nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any
Significant Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department ("OFAC"); except as disclosed in the Time of Sale Prospectus and
the Prospectus, neither the Company nor any Significant Subsidiary engage
in any business disclosed in any country, person, or entity targeted by
sanctions under any of the Trading with the Enemy Act, the International
Emergency Economic Powers Act, the United Nations Participations Act, the
Syria Accountability and Lebanese Sovereignty Act, all as amended, or any
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto (collectively, the
"SANCTIONS LAWS AND
Sterlite Industries (India) Limited
Underwriting Agreement
15
REGULATIONS"), or with any person or entity in those countries, or perform
contracts in support of projects in or for the benefit of those countries,
persons or entities.
(xlii) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or
other person acting on behalf of the Company or any Significant Subsidiary is
aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the "FCPA"), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(xliii) Money Laundering. The operations of the Company and each
Significant Subsidiary are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "MONEY
LAUNDERING LAWS") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any Significant Subsidiary with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(xliv) Passive Foreign Investment Company. The Company does not expect to
be a Passive Foreign Investment Company ("PFIC") within the meaning of Section
1297(a) of the United States Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder for the taxable year ending
March 31, 2007, and has no plan or intention to conduct its business in a manner
that would be reasonably expected to result in the Company becoming a PFIC in
the future under current laws and regulations.
(xlv) Reserves. All information related to the mineral and ore reserves of
the Company and any Significant Subsidiary contained in (A) each of the
Registration Statement, the ADS Registration Statement and the Japanese
Securities Registration Statement, when it became effective; (B) the Time of
Sale Prospectus at the time of each sale of the ADSs in connection with the ADS
Offering and at each Time of Delivery (as defined in Section 4(a) below) when
the Prospectus is not yet available to prospective purchasers, as then amended
or supplemented by the Company; and (C) the Prospectus, the Japanese Preliminary
Prospectus and the Japanese Prospectus (the "RESERVE INFORMATION"), (1) was and
is accurate in all material respects, (2) complied and will
Sterlite Industries (India) Limited
Underwriting Agreement
16
comply in all material respects with the requirements of the Securities Act and
SELJ and (3) when read together with the other information in the Prospectus and
the Japanese Disclosure Documents, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; all
information related to the mineral and ore reserves of the Company and any
Significant Subsidiary provided to SRK Consulting (UK) Ltd, SRK Consulting
(Australia) Pty Ltd and SRK Consulting (South Africa) Pty Ltd (collectively,
"SRK") was and is accurate in all material respects; the Reserve Information has
been calculated in accordance with standard mining engineering procedures used
in the mining industry and applicable government reporting requirements and
applicable law; all assumptions used in the calculation of the Reserve
Information were and are reasonable.
(xlvi) Mining Rights. The Company or a Significant Subsidiary holds
freehold title, mining leases, mining claims or other conventional proprietary
interests or rights recognized in the jurisdiction in which each property
described in each of the Time of Sale Prospectus, the Prospectus, and the
Japanese Disclosure Documents is located, in the ore bodies and mineral
inventories and the milling, smelting and refining facilities as described in
each of the Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents (and all properties respectively relating thereto) under valid,
subsisting and enforceable title documents, contracts, leases, licenses of
occupation, mining concessions, permits, or other recognized and enforceable
instruments and documents, sufficient to permit the Company or any Significant
Subsidiary, as the case may be, to explore for, extract, exploit, remove,
process or refine the minerals relating thereto, except where the failure to so
hold such interests or rights would not have a Material Adverse Effect. In
addition, the Company or a Significant Subsidiary has all necessary surface
rights, water rights and rights in water, rights of way, licenses, easements,
ingress, egress and access rights, and all other presently required rights and
interests granting the Company or any Significant Subsidiary, as the case may
be, the rights and ability to explore for, mine, extract, remove or process the
minerals derived from the ore bodies and mineral inventories described in the
Time of Sale Prospectus, the Prospectus and the Japanese Disclosure Documents or
to transport for refinement or market or distribute the ore and metals produced
at the milling, smelting and refining facilities described in each of the Time
of Sale Prospectus, the Prospectus and the Japanese Disclosure Documents all as
referred to in each of the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents with only such exceptions as are described in each
of the Time of Sale Prospectus, the Prospectus and the Japanese Disclosure
Documents, or as do not have a Material Adverse Effect. Each of the
aforementioned interests and rights is currently in good standing except for
those interests and claims which, if not kept in good standing, would not have a
Material Adverse Effect.
(xlvii) Foreign Institutional Investor Limit. (A) The board of directors of
the Company has approved an increase to the Company's Foreign Institutional
Investor shareholding limit (the "FII LIMIT") to 49% of its issued share capital
on [-], 2007, and the Company has duly dispatched a notice to shareholders to
convene an extraordinary general meeting to be convened on [-], 2007 to approve
the resolution to increase the FII limit to 49%; and (B) the shareholders of the
Company as set forth on Schedule V hereto
Sterlite Industries (India) Limited
Underwriting Agreement
17
have undertaken to the underwriters that they will vote in favor of the
shareholders' resolution described in (B) above.
(xlviii) Listing Approval. The Company has received in-principle approval
of the Indian Exchanges to list the Shares, and such approvals are in full force
and effect on the date hereof and at each Time of Delivery.
(xlix) Japanese Securities Registration Statement. The Company has filed
with the DKLFB the Japanese Securities Registration Statement, except for the
POWL Final Amendment; the registration made under the Japanese Securities
Registration Statement will become effective no later than [-], 2007 or such
other date on which the POWL Final Amendment is filed with the DKLFB and will
remain effective at the First Time of Delivery; and the Japanese Securities
Registration Statement, on the date hereof and the date of the First Time of
Delivery (as defined in Section 4 hereof) (A) conforms and will conform in all
material respects to the requirements of SELJ and the cabinet orders and
ministerial ordinances and other rules and regulations thereunder (including the
SELJ, the "JAPANESE RULES AND REGULATIONS"), and (B) does not and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. No order preventing or suspending the effectiveness of, or,
requiring the amendment to, the Japanese Securities Registration Statement, nor
notice of a hearing from which such order may result, has been issued by the
DKLFB (or any other Japanese securities authority).
(l) Japanese Preliminary Prospectus and Japanese Prospectus. The Japanese
Preliminary Prospectus at the time of issue thereof conformed, and the Japanese
Prospectus at the time of issue thereof and as of the First Time of Delivery
will conform, in all material respects to the requirements of the Japanese Rules
and Regulations, and the Japanese Preliminary Prospectus at the time of issue
thereof did not, and the Japanese Prospectus at the time of issue thereof and as
of the First Time of Delivery will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(li) No Consents, Approvals, Etc. Required in Japan. Other than the
requirement to file the Japanese Securities Registration Statement with the
DKLFB and it becoming effective, no consent, approval, authorization, order of,
or clearance by, or registration or filing with any governmental agency or body
or any court, any stock exchange authorities in Japan is required for the
consummation of the transactions contemplated by the Deposit Agreement, this
Agreement, the Japanese Disclosure Documents, the deposit of the Shares with the
Indian Domestic Custodian acting on behalf of the Depositary by the Company
pursuant to the Deposit Agreement, or the issuance and sale of ADRs evidencing
the ADSs representing the Shares at the First Time of Delivery or the execution
and delivery of the Deposit Agreement or this Agreement, except such consents,
approvals, authorizations orders, clearances, registrations or filings, as have
been obtained or made and are in full force and effect under the Japanese Rules
and Regulations; provided that the Company may be required to file a
post-transaction report with the Minister of Finance of Japan pursuant to the
Foreign Exchange and Foreign Trade Law of Japan.
Sterlite Industries (India) Limited
Underwriting Agreement
18
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS.
(a) Firm ADSs. Subject to the terms and conditions herein set forth and set
forth in Section 7 of this Agreement, (i) the Company agrees to sell to each of
the Underwriters the number of Firm ADSs and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price per
ADS of US$[-] the number of Firm ADSs set forth opposite the name of such
Underwriter in Schedule I hereto and (ii) in the event and to the extent the
Representatives on behalf of the Underwriters shall exercise the election to
purchase Optional ADSs as provided below, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price per ADS set forth in
this subsection (a), that portion of the number of Optional ADSs as to which
such election shall have been exercised (to be adjusted by the Representatives
so as to eliminate fractional shares) determined by multiplying such number of
Optional ADSs by a fraction, the numerator of which is the maximum number of
Optional ADSs which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto, and the denominator
of which is the maximum number of Optional ADSs that all of the Underwriters are
entitled to purchase hereunder.
(b) Optional ADSs. The Company hereby grants to the Underwriters the right
to purchase at their election up to [-] Optional ADSs at the purchase price per
ADS set forth in subsection (a) above. Any such election to purchase Optional
ADSs shall be made in proportion to the maximum number of Optional ADSs to be
sold by the Company. Any such election to purchase Optional ADSs may be
exercised only once by written notice from the Representatives to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional ADSs to be purchased and the date
on which such Optional ADSs are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
SECTION 3. TERMS OF THE OFFERING. Upon the authorization by the
Representatives of the release of the Firm ADSs, the several Underwriters
propose to offer the Firm ADSs for sale upon the terms and conditions set forth
in the Prospectus; and subsequently [-] Firm ADSs underwritten by Nomura
Singapore will be offered by Nomura Securities Co., Ltd. ("NOMURA SECURITIES")
in Japan, acting as the sole bookrunner for the Japanese POWL and its certain
selling members, if any.
SECTION 4. PAYMENT AND CLOSING.
(a) Payment and Closing. ADRs evidencing the ADSs to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as the Representatives or their United States
selling agents may request upon at least forty-eight hours' notice to the
Company prior to each Time of Delivery (the "NOTIFICATION TIME"), shall be
delivered on each Time of Delivery by or on behalf of the Company to the
Representatives or their United States selling agents, through the facilities of
the Depositary or The Depository Trust Company ("DTC"), for the account of each
such Underwriter. Against such delivery of ADRs evidencing the ADSs for the
account of each such Underwriter by or on behalf of the Company, each such
Underwriter shall pay the purchase price therefor (net of
Sterlite Industries (India) Limited
Underwriting Agreement
19
expenses as set forth in Section 6 hereof) by wire transfer to the account
designated by the Company payable to the order of the Company in Federal (same
day) funds. The Company will cause the certificates representing ADRs evidencing
the ADSs to be made available by the Depositary or the Company, as applicable,
for checking at least twenty-four hours prior to the Time of Delivery with
respect thereto at the office of the Depositary or DTC, as applicable, or its
designated custodian (the "DESIGNATED OFFICE").
The time and date of such delivery and payment shall be, with respect to
the Firm ADSs, 9:00 a.m. New York time, on [?], 2007 or such other time and date
as the Representatives and the Company may agree upon in writing, and, with
respect to the Optional ADSs, 9:00 a.m. New York time, on the date specified by
the Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional ADSs, or such other time and
date as the Representatives and the Company may agree upon in writing. Such time
and date for delivery of the Firm ADSs is herein called the "FIRST TIME OF
DELIVERY", such time and date for delivery of the Optional ADSs, if not the
First Time of Delivery, is herein called the "SECOND TIME OF DELIVERY", and each
such time and date for delivery is herein called a "TIME OF DELIVERY".
(b) Delivery of Closing Documents. The documents to be delivered at each
Time of Delivery by or on behalf of the parties hereto pursuant to Section 7
hereof, including the cross-receipt for the ADSs and any additional documents
requested by the Underwriters pursuant to Section 7(o) hereof will be delivered
at the offices of Shearman & Sterling LLP, 12/F, Gloucester Tower, The Landmark,
▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "CLOSING LOCATION"), and the
ADSs will be delivered as specified in subsection (a) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 9:00 a.m., New York
time on the Business Day next preceding such Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the purposes of
this Section 4, "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New
York, India, Japan or London are generally authorized or obligated by law or
executive order to close.
SECTION 5. COVENANTS.
(a) Covenants of the Company. The Company agrees with each of the
Underwriters as follows:
(i) Filing of Prospectus; Notification and Filing of Amendments. To
prepare the Prospectus in a form approved by the Representatives and to
file such Prospectus in the manner and within the applicable period
specified in Rule 424(b) (without reliance on Rule 424(b)(8) under the
Securities Act) under the Securities Act or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities Act; to
make no further amendment or any supplement to the Registration Statement,
the ADS Registration Statement, the 8-A Registration Statement, Time of
Sale Prospectus or Prospectus prior to the last Time of Delivery which
shall be disapproved by the Representatives promptly after reasonable
notice thereof, provided, however, that the Representatives shall not
unreasonably withhold approval of the amendment or
Sterlite Industries (India) Limited
Underwriting Agreement
20
supplement to the Registration Statement; to give the Representatives
notice of its intention to make any such filing from the time of first sale
of the ADSs to any investor to the First Time of Delivery, and will furnish
the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing, as applicable; to advise the
Representatives promptly after it receives notice thereof of the time when
any amendment to the Registration Statement, the ADS Registration Statement
or the 8-A Registration Statement has been filed or becomes effective, or
any supplement to the Prospectus or any amended Prospectus has been filed,
and to furnish the Representatives with copies thereof; to advise the
Representatives at any time it becomes an "ineligible issuer" as defined in
Rule 405 under the Securities Act; to file promptly all reports required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c) or 15(d) of the Exchange Act, subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the ADS Offering; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or Prospectus, of the suspension of the
qualification of the Shares or the ADSs for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purposes, or of any request by the Commission for the amending or
supplementing of the Registration Statement, any preliminary prospectus or
Prospectus or for additional information; and, in the event of the
issuances of any stop order or of any order preventing or suspending the
use of any preliminary prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order.
(ii) Suspension of Japanese Securities Registration Statement. To
advise Nomura Singapore and Nomura Securities, promptly after the Company
receives notice thereof, of the issuance by the DKLFB of any notice of
hearing from which may result an order requiring the filing of an amendment
to the Japanese Securities Registration Statement or an order suspending
the effectiveness of the registration under the Japanese Securities
Registration Statement; and in the event of the issuance of any such order,
to use its best efforts to promptly file such required amendment or, as the
case may be, file such amendment to the Japanese Securities Registration
Statement as is necessary for DKLFB to terminate such suspension order or
otherwise use its best efforts to obtain such termination.
(iii) Qualification of ADSs for Offer and Sale. To take such action as
the Representatives may reasonably request to qualify the ADSs for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the ADSs; provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a general consent to service of process in any
jurisdiction or to subject it to taxation in respect of doing business in
any jurisdiction in which it is not otherwise subject.
(iv) Delivery of Prospectuses. (A) If the Time of Sale Prospectus is
being used to solicit offers to buy the ADSs at a time when the Prospectus
is not yet available to
Sterlite Industries (India) Limited
Underwriting Agreement
21
prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement then on file, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or supplemented
will not, in the light of the circumstances when delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended
or supplemented, will no longer conflict with the Registration Statement,
or so that the Time of Sale Prospectus, as amended or supplemented, will
comply with applicable law;
(B) If, during such period after the first date of the public offering
of ADSs as in the reasonable opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading,
or if, in the reasonable opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
the Representatives will furnish to the Company) to which ADSs may have
been sold by the Representatives on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law;
(C) As soon as practicable but not later than the third business day
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City or such other
place as the Representatives may specify in such quantities as the
Representatives may reasonably request; and
(D) No later than [-], 2007, to furnish to or to the order of Nomura
Securities such number of copies of the Japanese Prospectus in Tokyo or
such other place in Japan as Nomura Securities may reasonably request, and,
if the delivery of a Japanese Prospectus is required at any time prior to
the expiration of three months after the effective date of the registration
made under the Japanese Securities Registration Statement and if at such
time any events shall have occurred as a result of which the Japanese
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the
Sterlite Industries (India) Limited
Underwriting Agreement
22
statements therein, in the light of the circumstances under which they were
made when such Japanese Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend the
Japanese Prospectus or to file under the Japanese Rules and Regulations any
document in order to comply with the Japanese Rules and Regulations, to
notify Nomura Singapore and upon its request to file such document and to
prepare and furnish to Nomura Securities and to any dealer in securities as
many copies as Nomura Securities may from time to time reasonably request
of an amended Japanese Prospectus or a supplement to the Japanese
Prospectus which will correct such statement or omission or effect such
compliance.
(v) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(vi) Lock-Up. The Company will not, during the period commencing on
the date hereof and ending on the day after the date 180 days after the
date of the Prospectus (A) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant or exercise any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or
indirectly, or file or cause to be filed a registration statement, or
exercise any registration right, in respect of, any ADSs or Equity Shares
or any securities convertible into or exchangeable or exercisable for any
ADSs or Equity Shares, or any similar securities, or (B) enter into any
swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of ADSs or Equity Shares, whether any
such transaction described in clause (A) or (B) above is to be settled by
delivery of ADS or such other securities, in cash or otherwise, except (x)
pursuant to any employee stock option plan that has been or may be adopted
by the Company or (y) with respect to any Equity Shares to be issued as an
annual dividend or annual bonus issue to directors, supervisors and
employees which is approved by the Company's shareholders; provided that if
(A) during the last 17 days of the restricted period the Company issues an
earnings release or announces material news or a material event or (B)
prior to the expiration of the restricted period, the Company announces
that it will release earnings results during the 16-day period beginning on
the last day of the restricted period, the restrictions imposed by this
agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the announcement of
the material news or material event, as applicable; provided further that
in the case of clause (B) the preceding proviso, if no earnings results are
released during the 16-day period, the lock-up will terminate on the last
day of the 16-day period. The Company will not facilitate any conversions
or exchanges of Equity Shares into ADSs during this 180-day period.
(vii) Annual Reports. To furnish to the Depositary for mailing to all
holders of record of ADRs as soon as practicable after the end of each
fiscal year an annual report (in English) (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants and prepared in conformity with U.S. GAAP or Indian GAAP, as
applicable) and to file with Commission on a timely basis for each year an
annual report
Sterlite Industries (India) Limited
Underwriting Agreement
23
on Form 20-F, which conforms in all material respects to the requirements
of the Exchange Act, and the rules and regulations of the Commission
thereunder.
(viii) No Stabilization Action. Not to (and to cause its Significant
Subsidiaries and affiliates not to) take, directly or indirectly, any
action which is designed to or which constitutes or which might reasonably
be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the ADSs.
(ix) Listing. To cause (a) the ADSs to be listed on the New York Stock
Exchange, Inc. ("NYSE") and (b) the Shares underlying the ADSs to be listed
on the Indian Exchanges within 45 days from the date of each Time of
Delivery.
(x) Approvals by Governmental Agencies. To make any post-closing
filing, notice or undertaking requested or required by any governmental
agencies (including the post closing report to be filed with the Reserve
Bank of India within 30 days of closing of the ADS Offering) with respect
to the transactions contemplated by this Agreement.
(xi) Rule 462(b) Registration Statement. If the Company elects to rely
upon Rule 462(b), to file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C.
time, on the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Securities Act.
(xii) Continued Compliance with Applicable Securities Laws. To comply
with, or obtain waivers of all applicable requirements of U.S., Indian and
Japanese law, including, without limitation, the Securities Act and the
Exchange Act, the rules and regulations of the Commission promulgated
thereunder, the Investment Company Act, the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD"), any requests of
the Commission or the Japanese Rules and Regulations so as to permit the
completion of the transactions contemplated by each of this Agreement, the
Deposit Agreement, the Time of Sale Prospectus, the Prospectus and the
Japanese Disclosure Documents.
(xiii) Reporting Requirements. (A) To file, during the period when the
Prospectus is required to be delivered under the Securities Act, on a
timely basis, with the Commission all reports and documents required to be
filed pursuant to the Exchange Act and the rules and regulations of the
Commission promulgated thereunder.
(B) To file with the DKLFB annual securities reports, semi-annual
securities reports and, if necessary, extraordinary reports (including
amendments thereto, respectively) of the Company as required under the
SELJ, and shall otherwise comply with the Japanese Rules and Regulations;
and promptly to furnish to Nomura Securities copies of (i) its reports
(including annual securities reports, semi-annual securities reports and
any extraordinary reports) which the Company files with the DKLFB in
Sterlite Industries (India) Limited
Underwriting Agreement
24
connection with the ADSs and (ii) all documents which the Company files
with the DKLFB in connection with the ADSs pursuant to the SELJ; provided,
however, that with respect to the documents filed with the DKLFB through
the Electronic Disclosure for Investors' NETwork (EDINET), the Company may
notify Nomura Securities of the filing of such documents in substitution
for the delivery of copies thereof.
(xiv) Payment of Taxes. To indemnify and hold the Underwriters
harmless against any documentary, stamp or similar issuance or registration
taxes, duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, payable in India, which are
or may be required to be paid in connection with the creation, allotment,
issuance, offer and distribution of the ADSs and the execution and delivery
of this Agreement and the Deposit Agreement.
(xv) No Fiduciary Relationship. The Company acknowledges and agrees
that (A) the purchase and sale of the ADSs pursuant to this Agreement is an
arm's-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other, (B) in connection therewith and
with the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Company, (C) no
Underwriter has assumed an advisory or fiduciary responsibility in favor of
the Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to
the Company except the obligations expressly set forth in this Agreement
and (D) the Company has consulted its own legal and financial advisors to
the extent it deemed appropriate. The Company waives to the full extent
permitted by applicable law any claims it may have against the Underwriters
arising from an alleged breach of fiduciary duty in connection with the
offering of the Shares.
(xvi) Free Writing Prospectuses. (A) To furnish to the Representatives
a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which the Representatives
reasonably object and (B) not to take any action that would result in an
Underwriter or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of the Underwriter that the Underwriter otherwise
would not have been required to file thereunder.
(xvii) OFAC and Sanctions Law and Regulations. The Company and each
Significant Subsidiary will not use the proceeds from the sale of the ADSs
or Equity Shares, directly or indirectly, (A) for any purpose or activity
that would violate, or cause any person associated with the ADS Offering to
violate the Sanctions Laws and Regulations, or (B) in connection with
business, operations or contracts within the countries, or with the
governments or with any person or entity, in each case that are prohibited
by the Sanctions Laws and Regulations, or in connection with contracts in
support of projects in or for the benefit of such countries, governments,
persons or entities.
Sterlite Industries (India) Limited
Underwriting Agreement
25
(xviii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the ADSs in the manner specified in the
Prospectus under "Use of Proceeds" and the corresponding descriptions
contained in the Japanese Disclosure Documents.
(xix) Foreign Institutional Investor Limit. The Company will take all
steps to ensure that shareholder meeting to increase the F11 Limit in the
Company to 49% will be convened before [-], 2007.
(b) Covenants of the Underwriters.
(i) Free Writing Prospectuses. Each Underwriter severally covenants
with the Company, unless it obtains the prior written consent of the
Company, not to take any action that would result in the Company being
required to file with the Commission under Rule 433(d) a free writing
prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the
action of the Underwriter.
SECTION 6. PAYMENT OF EXPENSES. Provided that the transactions contemplated
in this Agreement are consummated, the Company covenants and agrees with the
several Underwriters that (a) the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the ADSs under the Securities
Act (including all fees, disbursements and expenses of the Company's counsel
associated with the review and approval of the ADS Offering by Indian federal,
central, state and local authorities) and all other expenses in connection with
the preparation, printing and filing of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), the ADS Registration Statement (including exhibits), any preliminary
prospectus, Time of Sale Prospectus, the Prospectus, any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company, and
amendments and supplements thereto, including all printing, graphic and document
production and translation costs associated therewith, and the mailing and
delivering of copies thereof to its shareholders or to the Underwriters and
dealers, as the case may be; (ii) the cost of preparing, printing, producing,
filing and delivering the Deposit Agreement, any closing documents (including
compilations thereof) and any other documents in connection with the ADS
Offering, purchase, sale and delivery of the ADSs; (iii) all expenses in
connection with the qualification or registration (or of obtaining exemptions
from the qualification and registration) of the ADSs for offering and sale under
U.S. state securities laws, including the fees and disbursements of counsel for
the Underwriters (such amount not to exceed $20,000) in connection with such
qualification and in connection with the Blue Sky surveys; (iv) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the ADSs; (v) the fees and
expenses incurred in connection with admitting the ADSs for clearance and
settlement on the facilities of DTC; (vi) the cost of printing or producing any
non-U.S. legal investment memorandum in connection with the offer and sale of
the ADSs under foreign (non-U.S. federal or state) securities laws and all
expenses in connection with the qualification of the ADSs for offer and sale
under such foreign securities laws; (vii) the preparation, issuance and delivery
of the ADR certificates evidencing ADSs to the Underwriters, including any
stamp, transfer or other taxes payable thereon, and in connection with the sale
of the ADSs by the
Sterlite Industries (India) Limited
Underwriting Agreement
26
Underwriters to the initial purchasers thereof in the manner contemplated under
this Agreement, including, in any such case under this Agreement, any Indian
withholding or service tax asserted against an Underwriter by reason of the
purchase and sale of an ADS pursuant to this Agreement; (viii) the fees and
expenses (including fees and disbursements of counsel), if any, of the
Depositary and the Indian Domestic Custodian appointed under the Deposit
Agreement; (ix) the fees and expenses of the Authorized Agent (as defined in
Section 15 hereof); and (x) all fees and expenses in connection with listing the
ADSs on the NYSE; and (b) each of the Company and the Underwriters will bear its
own costs and expenses relating to investor presentations on any "road show" and
electronic roadshow undertaken in connection with the marketing of the ADS
Offering, including, without limitation, cost of road show venues, within city
local conveyance, meals, lodging expenses, and other related expenses, and the
cost of any aircraft chartered in connection with the road show, if applicable
("ROADSHOW EXPENSES"). If the transactions contemplated in this Agreement are
not consummated or this Agreement is terminated, each of the Company and the
Underwriters will bear its own Roadshow Expenses.
SECTION 7. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of such Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Filing of Prospectus; No Stop Order. The Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) in the manner and within the
applicable time period prescribed for such filing by the rules and regulations
(without reliance on Rule 424(b)(8)) under the Securities Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction; and no order suspending the effectiveness of such registration,
and no notice of a hearing from which an order suspending such effectiveness may
result, shall have been issued or given on or before the First Time of Delivery.
(b) No Suspension of Japanese Securities Registration Statement. The
registration made under the Japanese Securities Registration Statement shall
have become effective pursuant to the Japanese Rules and Regulations no later
than [-], 2007 and shall have remained effective at the First Time of Delivery;
and no order suspending the effectiveness of such registration, and no notice of
a hearing from which an order suspending such effectiveness may result, shall
have been issued or given on or before the First Time of Delivery.
(c) Opinion of Shearman & Sterling LLP. Shearman & Sterling LLP, United
States counsel for the Underwriters, shall have furnished to the Representatives
such opinion or opinions, dated such Time of Delivery, with respect to such
matters as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters.
Sterlite Industries (India) Limited
Underwriting Agreement
27
(d) Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States
counsel for the Company, shall have furnished to the Representatives their
written opinion, dated such Time of Delivery, in form and substance satisfactory
to the Representatives as attached hereto as Annex I, and such other documents
and materials with respect to such matters as the Representatives may reasonably
request.
(e) Opinion of Amarchand & Mangaldas & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co. Amarchand &
Mangaldas & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., India counsel for the Company, shall have
furnished to the Representatives their written opinion, dated such Time of
Delivery, in form and substance satisfactory to the Representatives as attached
hereto as Annex II.
(f) Opinion of S&R Associates. S&R Associates, India counsel for the
Underwriters, shall have furnished to the Representatives such opinion or
opinions, dated such Time of Delivery, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(g) Opinion of ▇▇▇▇▇▇▇▇, Mori & Tomotsune. ▇▇▇▇▇▇▇▇, Mori & Tomotsune,
Japan counsel for the Company, shall have furnished to the Representatives their
written opinion, dated such Time of Delivery, in form and substance satisfactory
to the Representatives as attached hereto as Annex III.
(h) Opinion of Linklaters. Linklaters, Japan counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated such
Time of Delivery, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(i) Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇ LLP, counsel for the Depositary, shall have furnished to the
Representatives their written opinion, dated such Time of Delivery, in form and
substance satisfactory to the Representatives as attached hereto as Annex IV,
and such other documents and materials with respect to such matters as the
Representatives may reasonably request.
(j) Comfort Letter of Deloitte ▇▇▇▇▇▇▇ & Sells, Mumbai, India. On the date
hereof, at 9:30 a.m. New York time, on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Deloitte ▇▇▇▇▇▇▇ & Sells, Mumbai,
India shall have furnished to the Representatives a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountant's "comfort letters" to underwriters, delivered according
to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the U.S. GAAP audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the ADS
Registration Statement, the Time of Sale Prospectus and the Prospectus, to the
effect set forth in Annex V hereto.
Sterlite Industries (India) Limited
Underwriting Agreement
28
(k) Comfort Letter of Chaturvedi & Shah. On the date hereof, at 9:30 a.m.
New York time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and also
at each Time of Delivery, Chaturvedi & Shah shall have furnished to the
Representatives a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountant's
"comfort letters" to underwriters, with respect to certain financial information
derived from the Company's unaudited financial statements prepared in accordance
with generally accepted accounting principles in India included in the
Registration Statement, the ADS Registration Statement, the Time of Sale
Prospectus and the Prospectus, to the effect set forth in Annex VI hereto.
(l) No Material Adverse Change. Subsequent to the execution and delivery of
this Agreement and prior to the Time of Delivery, there shall not have occurred
any material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business, management, operations or prospects of the Company and its Significant
Subsidiaries taken as a whole, other than as set forth in the Time of Sale
Prospectus and the Japanese Disclosure Documents, the effect of which, in any
such case is in the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the ADSs being delivered at such Time of Delivery on the terms
and in the manner set forth in the Time of Sale Prospectus and the Japanese
Disclosure Documents.
(m) Listing Approval. (i) The ADSs to be sold by the Company at such Time
of Delivery shall have been approved for listing on the NYSE, subject only to
official notice of issuance and (ii) prior to the date hereof, the Company has
received in-principle approval of the Indian Exchanges to list the Shares
underlying the ADSs, and such approvals are in full force and in effect on the
date hereof at each Time of Delivery.
(n) Depositary Certificates. The Depositary shall have furnished or caused
to be furnished to the Representatives at such Time of Delivery certificates
satisfactory to the Representatives evidencing the deposit with it of the Shares
being so deposited against issuance of ADRs evidencing the ADSs to be delivered
by the Company at such Time of Delivery, and the execution, countersignature (if
applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the
Deposit Agreement.
(o) Officer's Certificate. The Company shall have furnished or caused to be
furnished to the Representatives at such Time of Delivery certificates of
officers of the Company, satisfactory to the Representatives as to the accuracy
in all material respects, of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance in all material
respects by the Company of all of its obligations hereunder to be performed at
or prior to such Time of Delivery, and as to such other matters as the
Representatives may reasonably request, and the Company shall have furnished or
caused to be furnished certificates as to the matters set forth in subsections
(a), (b) and (l) of this Section, and as to such other matters as the
Representatives may reasonably request.
(p) Lock-up Agreements. The "lock-up" agreements, each substantially in the
form as set forth as Exhibit A hereto, between the Representatives and officers
and directors of the
Sterlite Industries (India) Limited
Underwriting Agreement
29
Company and certain shareholders named in Schedule IV hereto relating to sales
and certain other dispositions of ADSs or certain other securities, delivered to
the Representatives on or before the date hereof, shall be in full force and
effect as of the Time of Delivery.
The Representatives may, at their sole discretion, and on behalf of the
Underwriters, waive compliance with any of the conditions specified in this
Section 7; provided that compliance with respect to subsections (b), (g) and (h)
only of this Section 7 may only be waived with the consent of both the
Representatives and Nomura Singapore. If any condition specified in this Section
7 shall not have been fulfilled when and as required to be fulfilled, and such
condition shall not have been waived by the Representatives (or the
Representatives and Nomura Singapore with respect to subsections (b), (g) and
(h) only) pursuant to this Section, this Agreement, or, in the case of any
condition to the purchase of the Optional ADSs on a Time of Delivery which is
after the First Time of Delivery, the obligations of the several Underwriters to
purchase the relevant Optional ADSs may be terminated by the Representatives by
notice to the Company at any time at or prior to the relevant Time of Delivery,
and such termination shall be without liability of any party to any other party
except as provided in Section 6 and except that Sections 1, 8 and 10 shall
survive any such termination and remain in full force and effect.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of Underwriters by the Company. The Company agrees to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act selling ADSs on behalf of an
Underwriter, and the directors, officers and employees of such Underwriter,
person who controls any Underwriter and affiliate of any Underwriter
(collectively, the "INDEMNIFIED PARTIES"), against any losses, claims, damages
or liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim), joint or several, to which such Indemnified Party may become
subject, under the Securities Act, the Exchange Act or other United States
federal or state statutory law or regulation, the SELJ or Indian common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based in whole or in part upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), the ADS Registration
Statement, the 8-A Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, any free writing prospectus that the Company has filed, or
is required to file, pursuant to Rule 433(d) of the Securities Act, the
Prospectus or the Japanese Disclosure Documents, or any amendment or supplement
thereto, or (ii) arise out of or are based in whole or in part upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly for use
therein.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each of its directors,
Sterlite Industries (India) Limited
Underwriting Agreement
30
each of its officers, and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company, each of its directors, each of its officers, and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
to the Company in writing by such Underwriting through the Representatives
expressly for use in the Registration Statement (or any amendment thereto), the
ADS Registration Statement, the 8-A Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus that the
Company has filed or is required to file pursuant to Rule 433(d) of the
Securities Act, the Prospectus or the Japanese Disclosure Documents, or any
amendment or supplement thereto.
(c) Actions Against Parties; Notification. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election to so assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel (in addition
to any local counsel) or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without a
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment: (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the ADS Offering. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in
Sterlite Industries (India) Limited
Underwriting Agreement
31
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
ADSs purchased under this Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the ADSs purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the ADSs underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(e) No Prejudice to Other Liability. The obligations of the Company under
this Section 8 shall be in addition to any liability that the Company may
otherwise have; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have.
(f) Indemnity and Contribution Provisions to Survive. The indemnity and
contribution provisions contained in this Section 8 and the representations,
warranties and other statements of the Company and the other parties to this
Agreement that are contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter, or the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Shares or the ADSs.
Sterlite Industries (India) Limited
Underwriting Agreement
32
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. (a) If any
Underwriter shall default in its obligation to purchase ADSs which it has agreed
to purchase hereunder at a Time of Delivery, the Representatives may in its
discretion arrange for the Representatives or another party or other parties to
purchase such ADSs on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such ADSs, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such ADSs on such terms. In the
event that, within the respective prescribed periods, the Representatives notify
the Company that the Representatives have so arranged for the purchase of such
ADSs, or the Company notifies the Representatives that it has so arranged for
the purchase of such ADSs, the Company shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement,
the ADS Registration Statement, the Time of Sale Prospectus, the Prospectus or
the Japanese Disclosure Documents, or in any other documents or arrangements,
and the Company agrees to prepare and file promptly any amendments to the
Registration Statement, the ADS Registration Statement, the Time of Sale
Prospectus, the Prospectus or the Japanese Disclosure Documents, which in the
opinion of the Representatives may thereby be made necessary. The term
"UNDERWRITER" as used in this Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally been a
party to this Agreement with respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of the
ADSs of a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate number of such ADSs
which remains unpurchased does not exceed one-eleventh of the aggregate number
of all of the ADSs to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase, in
addition to the number of ADSs which such Underwriter agreed to purchase
hereunder at such Time of Delivery, such non-defaulting Underwriter's pro rata
share (based on the number of ADSs which such Underwriter agreed to purchase
hereunder) of the ADSs of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; provided that nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of ADSs of
a defaulting Underwriter or Underwriters by the Representatives and the Company
as provided in subsection (a) above, the aggregate number of such ADSs which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
ADSs to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase ADSs of a defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Second Time of Delivery, the obligations
of the Underwriters to purchase and of the Company to sell the Optional ADSs)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE. The
respective indemnities, agreements, representations, warranties and other
statements of the
Sterlite Industries (India) Limited
Underwriting Agreement
33
Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter, its directors,
officers, employees or agents, or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the Company and
shall survive delivery of and payment for the ADSs.
SECTION 11. LIABILITY OF COMPANY IN THE EVENT OF A DEFAULT BY ANY
UNDERWRITER. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter, except as
provided in Sections 6 and 8 hereof; but if for any other reason any ADSs are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through the Representatives for all out-of
pocket expenses reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the ADSs not so delivered (other than
fees, disbursements and expenses of the Underwriters' counsel and the
Underwriters' own Roadshow Expenses which shall be borne by the Underwriters),
but the Company shall then be under no further liability to any Underwriter in
respect of the ADSs not so delivered except as provided in Sections 6 and 8
hereof.
SECTION 12. TERMINATION. The Representatives may terminate this Agreement,
by notice to the Company, and, after consultation with the Company, at any time
at or prior to the First Time of Delivery (a) if there has been, since the time
of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or the Time of Sale Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business, management, operations or prospects of the Company and its
Significant Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, or (b) if there has occurred any material adverse
change in the financial markets in the United States, London, India, Japan or
the international financial markets, any outbreak of hostilities or terrorism or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in the United States, Indian, Japanese or
international political, financial or economic conditions (including a
declaration by the United States or India of a national emergency or war) or
currency exchange rates or exchange controls, in each case the effect of which
is such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the ADSs or to enforce contracts for the purchase or sale
of the ADSs, or (c) if trading in any securities of the Company (including the
Equity Shares or the ADSs) has been suspended or materially limited by the
Commission or the Indian Exchanges or the NYSE, or if trading generally on the
Indian Exchanges, the American Stock Exchange, Nasdaq National Market or the
NYSE has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the National
Association Securities Dealers, Inc. or any other governmental authority, or (d)
if a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or India or with respect
to Clearstream or Euroclear systems in Europe, or (e) if a banking moratorium
has been declared by either Indian, United States Federal, United Kingdom or New
York authorities. Any termination pursuant to this Section 12 shall be without
liability on the part of (i) the Company to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Representatives and
the Underwriters pursuant to Section 6 hereof (other than
Sterlite Industries (India) Limited
Underwriting Agreement
34
the fees, disbursements and expenses of the Underwriters' counsel and the
Underwriters' own Roadshow Expenses which shall be borne by the Underwriters),
(ii) any Underwriter to the Company, or (iii) of any party hereto to any other
party except that the provisions of Sections 6 and 8 shall at all times be
effective and shall survive such termination.
SECTION 13. NOTICES. In all dealings hereunder, the Representatives shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Representatives jointly. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to each of the Representatives at (i) c/o Merrill Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Attention: Equity Capital Markets, fax (212)
▇▇▇-▇▇▇▇, (ii) ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ Limited, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ Wharf, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and c/o Morgan ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Asia Limited, ▇▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Head of
Global Capital Markets, fax (▇▇▇) ▇▇▇▇-▇▇▇▇, and (iii) Citigroup Global Markets
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, fax
(▇▇▇) ▇▇▇-▇▇▇▇; and if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer; with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, fax (▇▇) ▇▇▇▇-▇▇▇▇; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
SECTION 14. BENEFITS OF AGREEMENT. This Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters and the Company, and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company, the directors, officers, employees and agents of any Underwriter,
and each person who controls the Company, or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the ADSs from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
SECTION 15. JURISDICTION; CONSENT TO SERVICE. Each of the parties hereto
irrevocably (a) agrees that any legal suit, action or proceeding against the
Company brought by any Underwriter or by any person who controls any Underwriter
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any federal or state court in the Borough of
Manhattan, The City of New York (a "NEW YORK COURT"), (b) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (c) submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation Systems, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., as its authorized agent (the "AUTHORIZED
AGENT") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any
Sterlite Industries (India) Limited
Underwriting Agreement
35
New York Court by any Underwriter or by any person who controls any Underwriter.
Such appointment shall be irrevocable. The Company represents and warrants that
the Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the party that has appointed it shall be
deemed, in every respect, effective service of process upon the Company.
SECTION 16. JUDGMENT CURRENCY. In respect of any judgment or order given or
made for any amount due hereunder that is expressed and paid in a currency (the
"JUDGMENT CURRENCY") other than United States dollars, the Company will
indemnify each Underwriter and the Underwriters will indemnify the Company
against any loss incurred by such Underwriter as a result of any variation as
between (a) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (b) the rate of exchange at which an Underwriter or the Company, as
applicable, are able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter or the Company, as
applicable. The foregoing indemnity shall constitute a separate and independent
obligation of each of the Underwriters or the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "RATE OF EXCHANGE" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars.
SECTION 17. TIME. Time shall be of the essence of this Agreement.
SECTION 18. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 19. COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
SECTION 20. HEADINGS. The headings of the sections of this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
SECTION 21. TAX DISCLOSURE. Notwithstanding any other provision of this
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby, the Company (and each employee, representative
or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to the Company relating to such tax
treatment and tax structure. For purposes of the foregoing, the term "tax
treatment" is the purported or claimed federal income tax treatment of the
transactions contemplated hereby, and the term "tax structure" includes any fact
that may be relevant to understanding the purported or claimed federal income
tax treatment of the transactions contemplated hereby.
SECTION 22. ENTIRE AGREEMENT. This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this
Sterlite Industries (India) Limited
Underwriting Agreement
36
Agreement) that relate to the offering of the ADSs, represents the entire
agreement between the Company and the Underwriters with respect to the
preparation of any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the offering, and the purchase and sale of the ADSs.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
Sterlite Industries (India) Limited
Underwriting Agreement
If the foregoing is in accordance with the Representatives' understanding,
please sign and return to us one original or counterpart hereof for the Company
and each of the Representatives of the Underwriters plus one for each counsel
and the Depositary, and upon the acceptance hereof by the Representatives, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that the Representatives' acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the
Representatives' part as to the authority of the signers thereof.
Very truly yours,
STERLITE INDUSTRIES (INDIA) LIMITED
By:
-------------------------------
Name:
Title:
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
CONFIRMED AND ACCEPTED
as of the date first above written
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
CITIGROUP GLOBAL MARKETS INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
--------------------------------
Name:
Title:
BY: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
By:
--------------------------------
Name:
Title:
BY: CITIGROUP GLOBAL MARKETS INC.
By:
--------------------------------
Name:
Title:
For themselves as Representatives of the other Underwriters named in
Schedule I hereto.
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
SCHEDULE I
NUMBER OF OPTIONAL ADSS TO BE
TOTAL NUMBER OF FIRM ADSS TO PURCHASED IF MAXIMUM OPTION
NAME OF UNDERWRITER BE PURCHASED EXERCISED
----------------------------------------------- -------------------------------- ------------------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated [o] [o]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited [o] [o]
Citigroup Global Markets Inc. [o] [o]
-------------------------------- ------------------------------------
Nomura Singapore Limited [o] 0
-------------------------------- ------------------------------------
-------------------------------- ------------------------------------
TOTAL [o] [o]
================================ =====================================
Schedule I
SCHEDULE II
TIME OF SALE PROSPECTUS
1. Preliminary Prospectus issued [[o], 2007]
Schedule II
SCHEDULE III
LIST OF SIGNIFICANT SUBSIDIARIES
Copper Mines of Tasmania Pty Ltd
Bharat Aluminium Company Limited
Hindustan Zinc Limited
Monte Cello BV
Sterlite Opportunities and Ventures Limited
Sterlite Energy Limited
Thalanga Copper Mines Pty Ltd
Vedanta Alumina Limited
Schedule III
SCHEDULE IV
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
DIRECTORS AND EXECUTIVE OFFICERS:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Dwarka ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Jalan
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
PRINCIPAL SHAREHOLDERS:
Vedanta Resources plc
Twin Star Holdings Limited
The Madras Aluminium Company Limited
Schedule IV
SCHEDULE V
SHAREHOLDERS OF THE COMPANY VOTING IN FAVOR OF INCREASE TO 49% IN FII LIMIT
Vedanta Resources plc
Twin Star Holdings Limited
The Madras Aluminium Company Limited
Schedule V
EXHIBIT A
[FORM OF LOCK-UP LETTER]
[DATE], 2007
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
As Representatives of the several Underwriters named in
Schedule I attached to the Underwriting Agreement
Dear Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several
Underwriters named in an Underwriting Agreement (as defined below), propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with
Sterling Industries (India) Limited, incorporated in the Republic of India (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters (the "UNDERWRITERS"), of [-] American depositary shares
(the "ADSS"), each representing one equity share, par value Rs. 2 per share, of
the Company (the "EQUITY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending on the day after the date 180 days after the date of the
final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant or
exercise any option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, or file or cause to be filed a
registration statement, or exercise any registration right, in respect of, any
ADSs or Equity Shares or any securities convertible into or exchangeable or
exercisable for any ADSs or Equity Shares, or any similar securities, held by
the undersigned on the date hereof, or (2) enter into any
Exhibit A
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of ADSs or Equity Shares held by the undersigned on
the date hereof, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of ADS or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transactions relating
to shares of ADS or other securities acquired in open market transactions after
the completion of the Public Offering, provided that no filing under Section
16(a) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
shall be required or shall be voluntarily made in connection with subsequent
sales of ADS or other securities acquired in such open market transactions, (b)
transfers of shares of ADS or any security convertible into ADS as a bona fide
gift or (c) distributions of shares of ADS or any security convertible into ADS
to limited partners or stockholders of the undersigned; provided that in the
case of any transfer or distribution pursuant to clause (b) or (c), (i) each
donee or distributee shall sign and deliver a lock-up letter substantially in
the form of this letter and (ii) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of shares of ADS, shall be
required or shall be voluntarily made during the restricted period referred to
in the foregoing sentence. In addition, the undersigned agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it
will not, during the period commencing on the date hereof and ending on the day
after the date 180 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of ADS or any
security convertible into or exercisable or exchangeable for ADS. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's shares of ADS except in compliance with the foregoing
restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an
earnings release or announces material news or a material event; or
(2) prior to the expiration of the restricted period, the Company announces
that it will release earnings results during the 16-day period beginning on the
last day of the restricted period;
the restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the announcement of material news or material event, as applicable;
provided that in the case of clause (2) above, if no earnings results are
released during the 16-day period, the lock-up will terminate on the last day of
the 16-day period.
The undersigned shall not engage in any transaction that may be restricted
by this agreement during the 34-day period beginning on the last day of the
initial restricted period unless the undersigned requests and receives prior
written confirmation from the Company or the Representatives that the
restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned
Exhibit A
further understands that this agreement is irrevocable and shall be binding upon
the undersigned's heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
--------------------------------
(Name)
--------------------------------
(Address)
Exhibit A