Exhibit (c)(i)
EXECUTION
TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED
and
TATA SONS LIMITED
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF
RULE 144A GLOBAL DEPOSITARY RECEIPTS
---------------------------
Rule 144A Deposit Agreement
---------------------------
Dated as of July 15, 1994
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Agreement ................................................... 1
SECTION 1.02. Beneficial Owner ............................................ 1
SECTION 1.03. Commission .................................................. 1
SECTION 1.04. Company ..................................................... 2
SECTION 1.05. Custodian ................................................... 2
SECTION 1.06. Depositary .................................................. 2
SECTION 1.07. Deposited Securities ........................................ 2
SECTION 1.08. Dollars; Rs ................................................. 2
SECTION 1.09. Effective Time .............................................. 2
SECTION 1.10. Holder ...................................................... 2
SECTION 1.11. Initial Deposit ............................................. 2
SECTION 1.12. Master Rule 144A GDR ........................................ 2
SECTION 1.13. Nominee ..................................................... 3
SECTION 1.14. Principal London Office ..................................... 3
SUCTION 1.15. Principal New York Office ................................... 3
SECTION 1.16. Registrar ................................................... 3
SECTION 1.17. Regulation S ................................................ 3
SECTION 1.18. Rule 144A GDRs .............................................. 3
SECTION 1.19. Rule 144A GDSs .............................................. 3
SUCTION 1.20. Securities Act .............................................. 4
SECTION 1.21. Securities Act Legend ....................................... 4
SECTION 1.22. Securities Exchange Act ..................................... 4
SECTION 1.23. Shares ...................................................... ▇
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ............................................... 4
ARTICLE II
BOOK-ENTRY SYSTEM, FORM OF RULE 144A GDRs,
DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RULE 144A GDRs
SUCTION 2.01. Book-Entry System; Form and Transferability of
Rule 144A GDRs ............................................ 5
SECTION 2.02. Deposit of Shares ........................................... 7
SECTION 2.03. Execution and Delivery of Rule 144A GDRs .................... 9
SECTION 2.04. Transfer of Rule 144A GDRs; Combination and
Split-up of Rule 144A GDRs ................................ 10
SECTION 2.05. Surrender of Rule 144A GDRs and Withdrawal
of Deposited Securities ................................... 12
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc.
of Rule 144A GDRs; Suspension of Delivery, Transfer, etc. . 13
SECTION 2.07. Lost Rule 144A GDRs, etc. ................................... 14
SECTION 2.08. Cancellation and Destruction of Surrendered Rule 144A GDRs .. 15
SUCTION 2.09. Maintenance of Records ...................................... 15
SUCTION 2.10. Partial Dividend Shares ..................................... 15
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RULE 144A GDRs
SECTION 3.01. Filing Proofs, Certificates and Other Information ........... 17
SECTION 3.02. Liability of Holders and Beneficial Owners
for Taxes and Other Charges ............................... 17
SECTION 3.03. Representations and Warranties on Deposit, Transfer and
Surrender and Withdrawal of Shares or Rule 144A GDRs ...... 18
SECTION 3.04. Disclosure of Beneficial Ownership. ......................... 18
ARTICLE IV
RIGHTS RELATING TO THE DEPOSITED SECURITIES,
CERTAIN OBLIGATIONS OF THE DEPOSITARY
SECTION 4.01. Power of Attorney ........................................... 19
SECTION 4.02. Cash Distributions; Withholding ............................. 19
SECTION 4.03. Distributions Other than Cash, Shares or Rights ............. 20
SECTION 4.04. Distributions in Shares ..................................... 20
SECTION 4.05. Rights ...................................................... 21
SECTION 4.06. Conversion of Foreign Currency .............................. 23
SECTION 4.07. Fixing of Record Date ....................................... 24
SECTION 4.08. Voting of Deposited Securities .............................. 24
SECTION 4.09. Changes Affecting Deposited Securities ...................... 25
SECTION 4.10. Transmittal by the Depositary of Company Notices,
Reports and Communications ................................ 26
SECTION 4.11. Withholding ................................................. 26
SECTION 4.12. Available Information ....................................... 27
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary .. 28
SECTION 5.02. Lists of Holders ............................................ 28
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company 29
SECTION 5.04. Prevention or Delay in Performance by the
Depositary or the Company ................................. 30
SECTION 5.05. Resignation anti Removal of the Depositary;
Appointment of Successor Depositary ....................... 30
SECTION 5.06. Charges of Depositary ....................................... 31
SECTION 5.07. The Custodian ............................................... 32
SECTION 5.08. Notices, Reports and Communications ......................... 33
SECTION 5.09. Issuance of Additional Shares, etc. ......................... 34
SECTION 5.10. Indemnification ............................................. 35
SECTION 5.11. Certain Rights of the Depositary; Limitations ............... 36
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment ................................................... 36
SECTION 6.02. Termination ................................................. 37
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts ................................................ 38
SECTION 7.02. No Third-Party Beneficiaries ................................ 38
SECTION 7.03. Severability ................................................ 38
SECTION 7.04. Holders said Beneficial Owners as Parties; Binding Effect ... 38
SECTION 7.05. Notice ...................................................... 38
SECTION 7.06. Governing Law ............................................... 40
SECTION 7.07. Prohibition of Assignment ................................... 40
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EXHIBIT A
LETTER OF REPRESENTATIONS TO THE DEPOSITORY
TRUST COMPANY ..................................................... A-1
EXHIBIT B
FORM OF PACE OF RULE 144A GDR
Introductory Paragraph ............................................ B-2
(1) The Deposit Agreement ..................................... B-2
(2) Surrender of Rule 144A GDRs anti Withdrawal
of Deposited Securities ................................. B-3
(3) Transfers, Split-ups and Combinations ..................... B-4
(4) Liability of Holder For Taxes
and Other Charges ....................................... B-6
(5) Warranties by Depositor ................................... B-7
(6) Additional Warranties ..................................... B-7
(7) Charges of Depositary ..................................... B-8
(8) Title to Rule 144A GDRs ................................... B-9
(9) Validity of Rule 144A GDR ................................. B-9
(10) Disclosure of Beneficial Ownership
and Ownership Restrictions .............................. B-9
(11) Available Information ..................................... B-9
Signature of Depositary ........................................... B-10
Address of Principal Office ....................................... B-10
FORM OF REVERSE OF RULE 144A GDR -- Summary of Certain
Additional Provisions of the Deposit Agreement
(12) Dividends and Distributions; Rights ....................... B-11
(13) Record Dates .............................................. B-14
(14) Voting of Deposited Securities ............................ B-14
(15) Changes Affecting Deposited Securities .................... B-15
(16) Reports; Inspection of Transfer Books ..................... B-15
(17) Withholding ............................................... B-16
(IS) Liability of the Company and
the Depositary .......................................... B-16
(19) Resignation and Removal of Depositary;
Substitution of Custodian ............................... B-18
(20) Amendment of Deposit Agreement and
Rule 144A GDRs .......................................... B-18
(21) Termination of Deposit Agreement .......................... B-19
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EXHIBIT C-1
CERTIFICATE AND AGREEMENT OF ACQUIRORS OF
RULE 144A GDSs UPON DEPOSIT OF SHARES
PURSUANT TO SECTION 2.02 OF THE RULE 144A
DEPOSIT AGREEMENT ................................................ C-1-1
EXHIBIT C-2
CERTIFICATE AND AGREEMENT OF PERSONS SURRENDERING
RULE 144A GDSs FOR THE PURPOSE OF
WITHDRAWAL PURSUANT TO SECTION 2.05
OF THE RULE 144A DEPOSIT AGREEMENT ............................... C-2-1
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RULE 144A DEPOSIT AGREEMENT
RULE 144A DEPOSIT AGREEMENT (this Agreement") dated as of July 15, 1994
among TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED, a limited liability
company organized under the laws of the Republic of India as a public company
(the "Company"), CITIBANK, N.A., a national banking association organized under
the laws of the United States of America, as depositary hereunder and any
successor as depositary hereunder (the "Depositary"), all Holders (as
hereinafter defined) from time to time of the Rule 144A Global Depositary
Receipts ("Rule 144A GDRs") issued hereunder and all owners, from time to time,
of any beneficial Interest in such Rule 144A GDRs and, with respect to Section
4.08 hereof only, TATA SONS LIMITED.
W I T N E S S E T H
WHEREAS, the Company desires to provide for (i) the initial deposit by the
Company of Shares (as defined herein) and subsequent deposits of additional
Shares (as hereinafter defined) from time to time thereafter, with the
Depositary or the Custodian (which at the date hereof is Citibank, N.A., Bombay)
(the "Custodian"), as agent of the Depositary, for the purposes set forth in
this Deposit Agreement, (ii) the creation of Rule 144A GDSs representing the
Shares so deposited and (iii) the execution and delivery of Rule 144A GDRs
evidencing the Rule 144A GDSs;
NOW, THEREFORE, in consideration of the premises the parties agree as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. Agreement. The term "Agreement" shall mean this instrument
as it may from time to time be amended in accordance with the terms hereof and
all instruments supplemental hereto.
SECTION 1.02. Beneficial Owner. The term "Beneficial Owner" shall mean any
person owning any beneficial interest in a Rule 144A GDR issued hereunder but
who is not the Holder of such Rule 144A GDR.
SECTION 1.03. Commission. The term "Commission" shall mean the Securities
and Exchange Commission of the United States or any successor governmental
agency in the United States.
SECTION 1.04. Company. The term "Company" shall mean Tata Engineering and
Locomotive Company Limited, a limited liability company organized under the laws
of the Republic of India as a public company and having its principal office at
Bombay House, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and its
successors.
SECTION 1.05. Custodian. The term "Custodian" shall mean, as of the date
hereof, Citibank, N.A., Bombay, as agent of the Depositary for the purposes of
this Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.07, as substitute
custodian or an additional custodian hereunder, as the context shall require,
and the term "Custodian" shall mean all of them, collectively, except for any
such person whose appointment has expired or otherwise terminated.
SECTION 1.06. Depositary. The term "Depositary" shall mean Citibank, N.A.,
a national banking association organized under the laws of the United States of
America, and any successor as depositary hereunder.
SECTION 1.07. Deposited Securities. The term "Deposited Securities" as of
any time shall mean the Shares at such time deposited under this Agreement and
any and all other Shares, securities, property and cash received by the
Depositary or the Custodian in respect of such Shares and other Shares and at
such time held hereunder, subject in the case of cash to the provisions of
Section 4.07.
SECTION 1.08. Dollars; Rs. The term "dollars" shall mean United States
dollars. The term "Rs." shall mean Indian rupees.
SECTION 1.09. Effective Time. The time, if any, as of which a registration
statement on Form F-6 under the Securities Act is declared effective by the
Commission with respect to the International GDSs.
SECTION 1.10. Holder. The term "Holder" shall mean the person in whose
name a Rule 144A GDR is registered on the books of the Depositary maintained for
such purpose.
SECTION 1.11. Initial Deposit. The term "Initial Deposit" shall mean the
deposit of Shares with the Custodian by the Company pursuant to the Purchase
Agreement dated July 15, 1994 between the Company and the purchasers named
therein.
SECTION 1.12. Master Rule 144A GDR. The term "Master Rule 144A GDR" shall
mean a global Rule 144A GDR registered in the name of The Depository Trust
Company or its nominee.
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SECTION 1.13. Nominee. The term "Nominee" when used with respect to the
Depositary shall mean such nominee or nominees of the Depositary as it shall
appoint from time to time to act on its behalf in connection with the
performance of its duties and obligations under this Agreement. The Nominee
shall perform in whatever capacity and to whatever extent under this Agreement
as the Depositary designates in its appointment of the Nominee. Such appointment
may be evidenced by written agreement, letter, telegram, telex or facsimile
transmission or orally with subsequent confirming agreement, letter, telegram,
telex or facsimile transmission.
SECTION 1.14. Principal London Office. The term "Principal London Office",
when used with respect to the Depositary, shall be the principal office of the
Depositary in London, England, which, at the date of this Agreement, is located
at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
SECTION 1.15. Principal New York Office. The term "Principal New York
Office", when used with respect to the Depositary, shall be the principal office
of the Depositary in The City of New York at which at any particular time its
corporate trust business shall be administered, which, at the date of this
Agreement, is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 1.16. Registrar. The term "Registrar" shall mean any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
appointed by the Depositary to register Rule 144A GDRs and transfers of Rule
144A GDRs as herein provided, and shall include any co-registrar appointed by
the Depositary, upon the request or with the approval of the Company, for such
purposes.
SECTION 1.17. Regulation S. The term "Regulation S" shall mean Rules 901
through 904 under the Securities Act, as such rules are from time to time
amended.
SECTION 1.18. Rule 144A GDRs. The term "Rule 144A GDRs" shall mean the
Global Depositary Receipts issued hereunder evidencing Rule 144A GDSs, as such
Global Depositary Receipts may be amended from time to time in accordance with
the provisions of this Agreement. A Rule 144A GDR may evidence any number of
Rule 144A GDSs.
SECTION 1.19. Rule 144A GDSs. The term "Rule 144A GDSs" shall mean the
rights evidenced by the Rule 144A GDRs issued hereunder and the interests in the
Deposited Securities represented thereby. Each Rule 144A GDS shall initially
represent one Share.
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SECTION 1.20. Securities Act. The term "Securities Act" shall mean the
United Stales Securities Act of 1933, as from time to time amended.
SECTION 1.21. Securities Act Legend. The term "Securities Act Legend'
shall mean the following statement:
THIS GLOBAL DEPOSITARY RECEIPT, THE GLOBAL DEPOSITARY SHARES EVIDENCED
HEREBY AND THE SHARES OF THE COMPANY REPRESENTED THEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) TO A PERSON WHOM THE SELLER AND ANY PERSON ACTING ON ITS BEHALF
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH RULE 903 OR RULE 904 OF REGULATIONS UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
SECTION 1.22. Securities Exchange Act. The term "Securities Exchange Act"
shall mean the United States Securities Exchange Act of 1934, as from time to
time amended.
SECTION 1.23. Shares. The term "Shares" shall mean the ordinary shares of
the Company, par value Rs. 10 per share, and shall include evidence of the right
to receive Shares. If there shall occur any change in par value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.10, an exchange or conversion in respect of the Shares,
the term "Shares" shall thereafter represent the successor securities resulting
from such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇. The term "United States" shall mean the
United States of America, its territories and possessions, any State of the
United States, and the District of Co1umbia.
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ARTICLE II
BOOK-ENTRY SYSTEM, FORM OF RULE 144A GDRs,
DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RULE 144A GDRs
SECTION 2.01. Book-Entry System; Form and Transferability of Rule 144A
GDRs. The Company and the Depositary shall make application to The Depositary
Trust Company ("DTC") for acceptance of the Rule 144A GDSs in its book-entry
settlement system.
The Company hereby appoints the Depositary acting through any authorized
officer thereof as its attorney-in-fact, with full power to delegate, for
purposes of executing any agreements, certifications or other instruments or
documents necessary or desirable in order to effect the acceptance of the Rule
144A GDSs for book-entry settlement in DTC, including but not limited to the
Letter of Representations to DTC, in substantially the form attached hereto as
Exhibit A.
So long as the Rule 144A GDSs are eligible for book-entry settlement with
DTC, unless otherwise required by law, such Rule 144A GDSs shall be evidenced by
the Master Rule 144A GDR registered in the name of a nominee of DTC, Citibank,
N.A. or such other entity as is agreed with DTC way hold the Master Rule 144A
GDR as custodian for DTC. During any period in which Rule 144A GDSs are
represented by the Master Rule 144A GDR, ownership of beneficial interests in
the Master Rule 144A GDR shall be shown on, and the transfer of such ownership
shall be effected through, records maintained by DTC or institutions that have
accounts with DTC. All references in this Agreement to issuance or delivery of
Rule 144A GDRs shall be deemed to include, where applicable, adjustments in the
records of the Depositary showing the number of Rule 144A GDSs evidenced by the
Master Rule 144A GDR.
If the application to DTC is not accepted or if, at any time when Rule
144A GDSs are evidenced by the Master Rule 144A GDR, DTC ceases to make its
book-entry settlement system available for such Rule l44A GDSs, the Company
shall consult with the Depositary regarding making other arrangements for
book-entry settlement. In the event that it is impracticable without undue
effort or expense to continue to have the Rule 144A GDSs available in book-entry
form as determined by the Company and the Depositary, the Company shall instruct
the Depositary to issue separate, certificated Rule l44A GDRs to the owners of
beneficial interests in the Master Rule 144A GDR with such additions, deletions
and modifications to this Agreement and to the form of Rule 144A GDR
5
attached hereto as Exhibit B as the Company and the Depositary may, from time to
time, agree (which may include requiring additional statements, documents and
certifications as a condition of issuing such separate Rule 144A GDRs).
The Rule 144A GDRs shall be produced by such method as may be agreed upon
by the Company and the Depositary, and shall be substantially in the form act
forth in Exhibit B annexed to this Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. The Master Rule 144A GDR
shall bear such additional legend or legends as may be required by DTC in order
to accept the Rule l44A GDSs for its book-entry settlement system. The Master
Rule 144A GDR shall provide that it shall evidence the aggregate number of Rule
144A GDSs from time to time indicated In the records of the Depositary and that
the aggregate number of Rule 144A GDSs evidenced thereby may from time to time
be increased or decreased by making adjustments to such records of the
Depositary.
Rule 144A GDRs shall be executed and dated by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, however,
that such signature may be a facsimile if a Registrar (other than the
Depositary) for the Rule 144A GDRs shall have been appointed and such Rule 144A
GDRs are countersigned by the manual signature of a duly authorized signatory of
such Registrar and dated by such signatory. No Rule 144A GDR shall be entitled
to any benefits under this Agreement or be valid or obligatory for any purpose,
unless such Rule 144A GDR shall have been executed by the Depositary by the
manual signature of a duly authorized signatory, or, if a Registrar (other than
the Depositary) shall have been appointed, by the manual signature of a duly
authorized signatory of such Registrar, and such execution of any Rule 144A GDR
by manual signature shall be conclusive evidence, and the only evidence, that
such Rule 144A GDR has been duly executed and delivered hereunder. The
Depositary shall maintain, or shall cause a Registrar to maintain, books in
which each Rule 144A GDR so executed and delivered as hereinafter provided and
the transfer of each such Rule 144A GDR shall be registered. Rule 144A GDRs
bearing the facsimile signature of a duly authorized signatory of the Depositary
who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to hold such
position prior to the execution of such Rule 144A GDRs by the Registrar and
their delivery or such signatory did not hold such position at the date of such
Rule 144A GDRs.
6
The Rule l44A GDRs shall be endorsed with the Securities Act Legend, and
may be endorsed with or have incorporated in the text thereof such other
legends, recitals or changes not inconsistent with the provisions of this
Agreement as may be required by any stock exchange or automated quotation system
on which the Rule 144A GDSs may be listed or quoted and as the Company and the
Depositary may agree upon from time to time.
The Rule 144A GDR shall bear a CUSIP number that is different from the
CUSIP number that is or may be assigned to any depositary receipts subsequently
or concurrently issued pursuant to any other arrangement with the Depositary
which are not Rule 144A GDRs issued hereunder.
Subject to any limitations set forth in a Rule 144A GDR or in this
Agreement, when such Rule 144A GDR is properly endorsed or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice), and upon compliance with the restrictions on
transfer set forth in the Securities Act Legend or any other legend appearing on
such Rule 144A GDR, title to such Rule l44A GDR (and to each Rule 144A GDS
evidenced thereby) shall be transferable by delivery with the same effect as in
the case of a negotiable instrument in accordance with the laws of the State of
New York; provided, however, that the Company and the Depositary,
notwithstanding any notice to the contrary, may deem and treat the Holder of a
Rule 144A GDR as the absolute owner thereof for any purpose, including but not
limited to the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Agreement
and neither the Depositary nor the Company shall have any obligation or be
subject to any liability under this Agreement to any holder of a Rule 144A GDR
unless such holder is the Holder thereof.
SECTION 2.02. Deposit of Shares. The Company shall make the Initial
Deposit of Shares by physical delivery to the Custodian or, if available, by
electronic transfer to the account of the Custodian maintained for that purpose.
Unless otherwise agreed by the Depositary and the Company and permitted by
applicable law, only (i) Shares and other securities issued to holders of Shares
as a dividend or free distribution or acquired by holders of Shares from the
Company through the exercise of rights, warrants or options distributed by the
Company to holders of Shares and (ii) securities issued by the Company to
holders of Shares as a result of reclassification of Shares other Deposited
Securities or similar event, may be deposited under this Agreement after the
Initial Deposit.
7
the Custodian shall accept Shares from the Company or an affiliate of the
Company pursuant to the foregoing paragraph, or Shares as may be otherwise
agreed by the Company and the Depositary in writing from time to time. Subject
to the limitations set forth in the preceding paragraph, Shares may be deposited
by (i) physical delivery of certificates evidencing such Shares or securities to
the Custodian, accompanied by any appropriate instrument or instruments of
transfer or endorsement, in form satisfactory to such Custodian, (ii) if
available, electronic transfer of such Shares or securities to the account of
the Custodian maintained for that purpose or (iii) delivery to the Custodian of
evidence satisfactory to the Custodian that irrevocable instructions have been
given to cause such Shares or securities to be transferred to such account, in
any such case accompanied by delivery to the Custodian of a written order from
or on behalf of such person directing the Depositary to issue a Rule 144A GDR or
Rule 144A GDRs for the number of Rule 144A GDSs representing the Shares so
deposited.
The Depositary and the Custodian shall refuse to accept Shares for deposit
whenever notified by the Company in writing that such deposit would result in a
violation of applicable laws.
The Company shall notify the Depositary and the Custodian in writing in
the event that Shares, Deposited Securities or GDRs shall be listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 or quoted in a U.S. automated inter-dealer quotation system
(within the meaning of Rule 144A(d)(3)(i)). In such event, notwithstanding any
other provision of this Deposit Agreement, the Depositary and the Custodian
shall refuse to accept for deposit any Shares, unless the person making such
deposit shall certify that neither the Shares nor other Deposited Securities to
be deposited were, when issued, of the same class (within the meaning of Rule
144A(d)(3)(i)), as securities so listed or quoted.
As a condition of accepting Shares for deposit and issuing Rule 144A GDRs,
the Depositary shall require that the person making such deposit furnish (1)
evidence satisfactory to the Depositary (which may be an opinion of counsel)
that any necessary approval has been granted by the governmental agency in the
Republic of India, if any, which is then performing the function of the
regulation of currency exchange, (2) an agreement or assignment, or other
instrument satisfactory to the Depositary, which provides for the prompt
transfer to the Depositary of any dividend or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of any such
deposited Shares, or, in lieu thereof, such agreement of indemnity as shall be
satisfactory to the Depositary and (3) except in the case of
8
those deposits referred to in clauses (i) and (ii) of the second preceding
paragraph, a fully completed signed certification by or on behalf of the person
acquiring beneficial ownership of Rule 144A GDSs upon such deposit substantially
in the form attached hereto as Exhibit C-1.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited or
evidence that Shares have been electronically transferred, if electronic
transfer is available, or that irrevocable instructions have been given to cause
the transfer of such Shares to the account of the Custodian, together with the
other orders, instruments and evidence herein specified, for the purpose of
forwarding such orders, instruments and evidence to the Custodian hereunder.
Upon each delivery to the Custodian of Shares to be deposited hereunder
(including deposits by electronic transfer, if available), together with the
other documents above specified, such Custodian shall, as soon as practicable,
transfer and record the Shares being deposited in the name of the Depositary or
its Nominee. Deposited Securities shall be held by the Depositary or by the
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine, subject to the applicable
laws of the Republic of India.
The Nominee may be the Custodian or another entity entitled to act as
nominee under relevant laws and regulations of the Republic of India, provided
that the Deposited Securities are kept in a segregated deposit account by the
Nominee.
SECTION 2.03. Execution and Delivery of Rule 144A GDRs. Upon receipt by a
Custodian of a deposit pursuant to Section 2.02 hereunder together with the
other certifications specified herein and, in addition, a proper acknowledgment
or other evidence from the Company (or the appointed agent of the Company for
transfer and registration of Shares), satisfactory to the Depositary that any
Deposited Securities are properly recorded upon the transfer books of the
Company (or such agent) maintained for that purpose in the name of the
Depositary or its Nominee, together with the other documents required as above
specified, such Custodian shall notify the Depositary of such deposit and
recordation and the person or persons to whom or upon whose written order a Rule
144A GDR or Rule 144A GDRs are deliverable in respect thereof and the number of
Rule 144A GDSs to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission.
9
Upon receiving such notice from such Custodian, the Depositary or its
agent, subject to the terms and conditions of this Deposit Agreement and as
permitted by Indian law, shall (i) if Rule 144A GDSs are then available in book
entry form (A) in the case of the Initial Deposit, execute and deliver the
Master Rule 144A GDR evidencing the Rule l44A GDSs and (B) in each such case,
adjust its records to reflect such deposit and to evidence in the aggregate the
number of Rule 144A GDSs issuable in respect of such deposit and credit such
Rule 144A GDSs to the DTC account specified in such notice or (ii) if Rule 144A
GDSs are not then available in book-entry form, execute and deliver at its
Principal New York Office or Principal London Office to or upon the order of the
person or persons named in the notice delivered to the Depositary a Rule 144A
GDR or Rule l44A GDRs registered in the name or names requested in such notice
and evidencing in the aggregate the number of Rule 144A GDSs to which such
person is entitled, but in each case only upon payment to the Depositary of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the deposited Shares.
The Depositary shall neither execute nor deliver a Rule 144A GDR nor
adjust its records in respect of any deposit of Shares unless a certification
and agreement in substantially the form appearing as Exhibit C-1 hereto is
provided to the Depositary by or on behalf of the person acquiring beneficial
ownership of any Rule 144A GDS.
The Depositary shall send a confirmation regarding the deposit of such
Shares and the issuance of a Rule 144A GDR or Rule 144A GDRs or the increase in
the number of Rule l44A GDSs outstanding and evidenced by the Master Rule 144A
GDR to the person or persons to whom or to whose DTC participant account the
Rule 144A GDSs are delivered or credited, such confirmation to contain a notice
with respect to such Shares and Rule 144A GDSs substantially in the form of the
Securities Act Legend.
SECTION 2.04. Transfer of Rule 144A GDRs; Combination and Split-up of Rule
144A GDRs. The Depositary, subject to the terms and conditions of this Agreement
and any Rule 144A GDR, shall, without unreasonable delay, register transfers of
any such Rule 144A GDR on its transfer books, upon any surrender of such Rule
144A GDR by the Holder thereof in person or by duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard industry practice and the
accurate completion of the certifications appearing on the reverse of such Rule
144A GDR relating to compliance with the restrictions on transfer thereof) and
duly stamped as may be required by any applicable law. Thereupon,
10
the Depositary shall execute a new Rule 144A GDR or Rule l44A GDRs and deliver
the same to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Agreement,
shall upon surrender of a Rule 144A GDR or Rule 144A GDRs for the purpose of
effecting a split-up or combination of such Rule 144A GDR or Rule 144A GDRs,
execute and deliver a new Rule 144A GDR or Rule 144A GDRs in the name of the
same Holder for any authorized number of Rule 144A GDSs requested, evidencing
the same aggregate number of Rule 144A GDSs as the Rule 144A GDR or Rule 144A
GDRs surrendered. In connection with any split-up or combination pursuant to
this paragraph, the Depositary shall not be obligated to obtain any
certification or endorsement otherwise required by the terms of this Agreement.
The Depositary, after consultation with the Company, may appoint one or
more co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Rule 144A GDRs at designated transfer offices on behalf of the
Depositary. Such co-transfer agents may be removed and substitutes appointed by
the Depositary after consultation with the Company. Each co-transfer agent
appointed under this Section 2.04 shall give notice in writing to the Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or Beneficial Owners or
persons entitled to Rule 144A GDRs and will be entitled to protection and
indemnity to the same extent as the Depositary.
The Rule 144A GDRs are initially being offered together with warrants (the
"Warrants", each Warrant representing the right to purchase one Share) in Rule
144A Units, each Rule 144A Unit consisting of one Rule 144A GDS and one Warrant
("Rule 144A Units"). Until the Separation Date (as herein defined), the Rule
144A GDSs and the Warrants will be traded together as Rule 144A Units. As used
herein, the Separation Date shall mean the date which is one business day after
the earliest of (i) August 14, 1994, (ii) the date of any exercise of the
International Managers' and U.S. Purchasers' over-allotment options pursuant to
the Purchase Agreements (each as herein defined) and (iii) any date on which CS
First Boston Limited irrevocably waives (by written notice to the Company) such
over-allotment options pursuant to the Purchase Agreements on behalf of the
International Managers and the U.S. Purchasers. The Purchase Agreements shall
mean, collectively, the Purchase Agreement dated July 15, 1994 (the
"International Purchase Agreement") among the Issuer and the managers named
therein (the
11
"International Managers") and the Purchase Agreement dated July 15, 1994 (the
"U.S. Purchase Agreement", and together with the International Purchase
Agreement, the "Purchase Agreements") among the Issuer and the purchasers named
therein (the "U.S. Purchasers"). After the Separation Date, the Rule 144A GDSs
and the Warrants may trade together or separately. Accordingly, transfers prior
to the Separation Date of beneficial interests in the Master Rule 144A GDR must
be made in conjunction with transfers of Warrants in the proportion in which
Rule 144A GDSs and Warrants are being initially offered as Rule 144A Units
pursuant to the Offering Circular dated July 15, 1994 of the Company.
SECTION 2.05. Surrender of Rule 144A GDRs and Withdrawal of Deposited
Securities. At any time after the date which is 45 days after the latest of the
commencement of the offering of Rule 144A GDSs, the original issue date of the
Rule 144A GDSs, and the issue date with respect to the additional Rule 144A
GDSs, if any, issued to cover overallotments in connection with the offering of
Rule 144A GDSs, upon (i) surrender at the Principal New York Office or Principal
London Office of the Depositary or such other offices as the Depositary may
designate of a Rule 144A GDR or (ii) receipt by the Depositary of written
instructions from DTC on behalf of any Beneficial Owner surrendering any
beneficial interest in the Master Rule 144A GDR with a corresponding credit to
the Depositary's account at DTC for the Rule 144A GDSs so surrendered, in either
case for the purpose of withdrawal of the Deposited Securities represented by
the Rule 144A GDSs evidenced by a Rule 144A GDR or constituting such person's
beneficial interest, and upon payment of the fee of the Depositary for the
surrender of Rule 144A GDSs and withdrawal of Deposited Securities and payment
of all taxes and governmental charges payable in connection with such surrender,
and subject to the terms and conditions of this Deposit Agreement, such Holder
or Beneficial Owner shall be entitled to delivery of the Deposited Securities
represented by the Rule 144A GDSs evidenced by such Rule 144A GDRs or
constituting such beneficial interest to him or upon his order by physical
delivery outside the United States or, if available, by electronic transfer to
an account outside the United States designated by such person. Such delivery of
Deposited Securities shall be made, as hereinafter provided, without
unreasonable delay. Each Holder or Beneficial Owner requesting delivery of
Deposited Securities against surrender of a Rule 144A GDR or a beneficial
interest in the Master Rule 144A GDR shall deliver to the Depositary a written
order containing delivery instructions and a certificate and agreement by or on
behalf of the person surrendering beneficial ownership of Rule 144A GDSs
substantially in the form of Exhibit C-2. A Rule 144A GDR surrendered
12
or written instructions received for such purposes may be required by the
Depositary to be properly endorsed or accompanied by properly executed
instruments of transfer. The Depositary will confirm the receipt of such order
with a notice containing the Securities Act Legend.
Upon the receipt of such order and such certificate and agreement and
compliance with the terms of this Section 2.05, the Depositary shall direct the
Custodian to deliver at the principal office of such Custodian or make an
electronic transfer as provided above, in each case subject to Sections 2.06,
3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement,
to or upon the written order of the person or persons designated in such written
instructions, such Deposited Securities, except that the Depositary may make
delivery to such person or persons at the Principal New York Office of the
Depositary of any cash dividends or any cash proceeds of sale of any dividends,
distributions or rights with respect to the Deposited Securities, which may at
the time be held by the Depositary.
At the request, risk and expense of any Holder or Beneficial Owner so
surrendering a Rule 144A GDR or beneficial interest, and for the account of such
Holder or Beneficial Owner, the Depositary shall direct the Custodian to forward
a certificate or certificates (if certificated securities may be delivered) and
other proper documents to title, if any, for such Deposited Securities to the
Depositary for delivery at the Principal New York Office or Principal London
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder or Beneficial Owner, by cable, telex or
facsimile transmission.
The Depositary shall not accept surrender of Rule 144A GDRs or written
instructions for the purpose of withdrawal of less than one Share. In addition,
the Depositary shall only honor requests for withdrawal of whole numbers of
Shares. In the case of surrender of a Rule 144A GDR or surrender of a beneficial
interest in the Master Rule 144A GDR evidencing a number of Rule 144A GDSs
representing other than a whole number of Shares, the Depositary shall cause
delivery of the appropriate whole number of Shares as hereinabove provided, and
shall execute and deliver to the person surrendering such Rule 144A GDR a new
separate Rule 144A GDR evidencing Rule 144A GDSs representing any remaining
fractional Shares or continue to reflect on its records the remaining Shares as
being represented by Rule 144A GDSs evidenced by the Master Rule 144A GDR.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc. of
Rule 144A GDRs; Suspension of Delivery, Transfer, etc. As a condition precedent
to the execution and delivery, registration of transfer, split-up,
13
combination or surrender of any Rule 144A GDR or any beneficial interest in the
Master Rule 144A GDR for the purpose of w1thdrawal of any Deposited Securities
or adjustment to the Depositary's records in order to reflect deposit of shares
or such transfer, surrender or withdrawal, the Depositary or the Custodian or
the Company by written instructions to the Depositary may require (i) payment
from the Holder, depositor of Shares or the presenter of a Rule 144A GDR of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer, custody or registration fee with respect thereto (including say
such tax or charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable foes as herein provided, (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature appearing
on any form, certification or other document delivered to the Depositary in
connection with this Agreement, including but not limited to, in the case of
Rule 144A GDRs, a signature guarantee in accordance with industry practice,
(iii) compliance with any laws or governmental regulations relating to
depositary receipts in general or to the withdrawal and sale of Deposited
Securities, (iv) delivery of such certificates as the Company may from time to
time specify in writing to the Depositary to assure compliance with the
Securities Act and rules and regulations thereunder, and (v) compliance with
such other restrictions, if any, as the Depositary and the Company may establish
consistent with the provisions of this Agreement.
Upon notice to the Company, the delivery of Rule 144A GDRs against, or
adjustments in the records of the Depositary to reflect, deposits of Shares
generally or of particular Shares may be suspended or withheld, or the
registration of transfer of Rule 144A GDRs in particular instances may be
refused, or the registration of transfer generally may be suspended, or the
surrender of outstanding Rule 144A GDRs or receipt of written instructions from
any person having a beneficial interest in Rule 144A GDSs represented by the
Master Rule 144A GDR for the purpose of withdrawal of Deposited Securities may
be suspended, during any period when the transfer books of the Depositary or the
Company (or the appointed agent of the Company for the transfer and registration
of Shares) are closed, or if any such action is deemed necessary or advisable by
the Company or the Depositary, in good faith, at any time or from time to time
because of any requirement of law or of any government or governmental
authority, body or commission under any provision of this Agreement
SECTION 2.07. Lost Rule 144A GDRs, etc. In case any Rule 144A GDR shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Rule 144A GDR of like tenor and registered in the
14
same name, in exchange and substitution for such mutilated Rule 144A GDR upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Rule 144A GDR, upon the filing by the Holder thereof with the
Depositary of (a) a request for such exchange, execution and delivery before the
Depositary has notice that the Rule 144A GDR has been acquired by a bona fide
purchaser and (b) an indemnity bond for the benefit of the Company and the
Depositary reasonably satisfactory to the Company and the Depositary, and upon
satisfying any other reasonable requirements imposed by the Depositary and the
Company upon notice to the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Rule 144A GDRs.
All Rule 144A GDRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled Rule 144A GDRs shall not be entitled to any benefits under
this Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy surrendered Rule 144A GDRs so canceled. Rule 144A GDSs
shall be deemed canceled when the Deposited Securities they represent are
withdrawn from deposit hereunder or when the number of Rule 144A GDSs evidenced
by the Master Rule 144A GDR on the records of the Depositary is so reduced and
no other Rule 144A GDR evidencing such Rule 144A GDSs is issued hereunder.
SECTION 2.09. Maintenance of Records. The Depositary shall maintain
records of all Rule 144A GDRs surrendered and Deposited Securities withdrawn
under Section 2.05, of substitute Rule 144A GDRs delivered under Section 2.07
and of Rule 144A GDRs canceled or destroyed under Section 2.08 in keeping with
procedures ordinarily followed by stock transfer agents located in The City of
New York.
SECTION 2.10. Partial Dividend Shares. In the event that any Shares
deposited hereunder entitle holders of record thereof ("recordholders") as of
the next dividend record date to receive a per-share dividend in an amount
different from that payable to recordholders of Shares initially deposited
hereunder, then the following provisions shall apply:
(a) The term "Full Dividend Shares" shall mean those Shares which
will entitle recordholders on the next dividend record date to receive a
per-Share dividend in an amount equal to that payable to recordholders of
Shares initially deposited hereunder. The term "Partial Dividend Shares"
shall mean those Shares which entitle recordholders as of the next
dividend record date to receive a per-Share dividend in an amount
different from that payable to recordholders of Full Dividend Shares.
15
(b) Partial Dividend Shares deposited hereunder shall be held by the
Depositary or Custodian in an account different from the account in which
Full Dividend Shares deposited hereunder are held.
(c) Partial Dividend Shares shall be represented by a class of Rule
144A GDSs ("Partial Dividend GDSs") different from those representing Full
Dividend Shares ("Full Dividend GDSs"), and such Partial Dividend GDSs
shall be evidenced by a class of Receipts ("Partial Dividend GDRs")
different from those evidencing Full Dividend GDSs ("Full Dividend GDRs")
and shall bear a legend with respect to their status as Partial Dividend
Shares. Partial Dividend GDRs shall have a CUSIP number that is different
than the CUSIP number that is assigned to the Rule 144A GDRs and be
endorsed with such legend as the Depositary and the Company may agree.
(d) Whenever Partial Dividend Shares become Full Dividend Shares,
the Depositary shall cause the Custodian to transfer such Shares into the
account in which other Full Dividend Shares are held, the Partial Dividend
GDSs representing such Shares shall automatically convert into Full
Dividend GDSs (the "New Full Dividend GDSs"), the Depositary shall call
for the surrender of the Partial Dividend GDR or GDRs evidencing such New
Full Dividend GDSs and, upon surrender thereof, shall either (i) issue new
Full Dividend GDRs to evidence such New Full Dividend GDSs or (ii) reflect
on its records and notify DTC that such New Full Dividend GDSs are
evidenced by the Master GDR evidencing all other Full Dividend GDRs, as
the case may be.
(e) Holders and Beneficial Owners of Full Dividend GDRs shall be
entitled to receive only dividends and other distributions received in
respect of Full Dividend Shares. Holders and Beneficial Owners of Partial
Dividend GDRs shall be entitled to receive only dividends and other
distributions received in respect of Partial Dividend Shares.
(f) All other provisions of this Agreement shall apply to Partial
Dividend Shares and Partial Dividend GDSs, subject to this Section 2.10.
16
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RULE 144A GDRs
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person depositing Shares, any Holder or any Beneficial Owner may be required
from time to time to file with the Depositary or the Custodian such proof of
citizenship, residence, exchange control approval, payment of applicable taxes
or governmental charges, or legal or beneficial ownership and the nature of such
interest, to provide information relating to the registration on the books of
the Company (or the appointed agent of the Company for the transfer and
registration of Shares) of the Shares presented for deposit or other
information, to execute and deliver such certificates and to make such
representations and warranties as the Depositary or the Company may deem
necessary or proper to enable the Depositary or the Company to perform their
obligations hereunder. The Depositary may withhold the execution or delivery or
registration of transfer of all or part of any Rule 144A GDR or the distribution
or sale of any dividend or other distribution of rights or of the proceeds
thereof or the withdrawal of any Deposited Securities until such proof or other
information is filed or such certificates are executed and delivered or such
representations and warranties are made. The Depositary shall provide the
Company, in a timely manner, with copies of any such proofs and certificates and
such written representations and warranties provided as aforesaid.
SECTION 3.02. Liability of Holders and Beneficial Owners for Taxes and
Other Charges. If any tax or governmental charge shall become payable with
respect to any Rule 144A GDR or any Deposited Securities represented by the Rule
144A GDSs evidenced by any Rule 144A GDR, such tax or other governmental charge
shall be payable by the Holder of such Rule 144A GDR to the Depositary and any
Beneficial Owner of such Rule 144A GDR shall be liable to the Holder therefor.
The Depositary may (and at the request of the Company shall) refuse, and the
Company shall be under no obligation, to effect any registration of transfer of
all or part of such Rule 144A GDR or any withdrawal of Deposited Securities
represented by the Rule 144A GDSs evidenced thereby until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Holder thereof any part or all of the Deposited Securities
represented by the Rule 144A GDSs evidenced by such Rule 144A GDR, and may apply
such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder and the Beneficial
Owners of such Rule 144A GDR remaining liable for any deficiency.
17
SECTION 3.03. Representations and Warranties on Deposit, Transfer and
Surrender and Withdrawal of Shares or Rule 144A GDRs. Each person depositing
Shares under this Agreement shall be deemed thereby to represent and warrant
that such Shares and each certificate therefor are validly issued, fully paid
and nonassessable and free of any preemptive rights, that the person making such
deposit is duly authorized so to do and that the deposit of shares by such
person does not violate the registration requirements of the Securities Act.
Such representations and warranties shall survive the deposit of Shares and the
issuance of Rule 144A GDRs or adjustments in the Depositary's records in respect
thereof.
Each person depositing Shares, transferring Rule 144A GDRs or any
beneficial interest therein, or surrendering Rule 144A GDRs or any beneficial
interest therein and withdrawing Shares under this Agreement shall be deemed
thereby to represent and warrant (a) in the case of deposits, to have made the
representation substantially as set forth in Exhibit C-1, (b) in the case of
surrender for the purpose of withdrawal, to have made representations and
warranties substantially as set forth in Exhibit C-2 and (c) in every such case,
to acknowledge that the Shares have not been and will not be registered under
the Securities Act, and may not be offered, sold, pledged or otherwise
transferred except under or in accordance with the restrictions on transfer set
forth in the Securities Act Legend and that any offers, sales, transfers or
other disposition of the Rule 144A GDRs or any beneficial interest therein or in
the Shares or any beneficial interest therein shall comply with the restrictions
set forth in the Securities Act Legend and to represent and warrant that such
deposit, transfer or surrender and withdrawal complies with such restrictions.
Such representations, warranties and agreements shall survive any such deposit,
transfer or surrender and withdrawal.
SECTION 3.04. Disclosure of Beneficial Ownership. The Company may from
time to time request Holders or former Holders to provide information as to the
capacity in which they hold or held Rule 144A GDRs and regarding the identity of
any other persons then or previously interested in such Rule 144A GDRs and the
nature of such interest and various other matters. Each such Holder and
Beneficial Owner agrees to provide any such information reasonably requested by
the Company or the Depositary pursuant to this Section 3.04 whether or not still
a Holder or Beneficial Owner at the time of such request. The Depositary agrees
to use its reasonable efforts to comply with written instructions received from
the Company requesting that the Depositary forward any such requests to Holders
and to the last known address, if any, of former Holders and to forward to the
Company any
18
responses to such requests received by the Depositary; provided, that nothing
herein shall be interpreted as obligating the Depositary to provide or obtain
any such information not provided to the Depositary by Holders or former
Holders.
ARTICLE IV
RIGHTS RELATING TO THE DEPOSITED SECURITIES;
CERTAIN OBLIGATIONS OF THE DEPOSITARY
SECTION 4.01. Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of a Rule 144A GDR issued in accordance with the terms hereof, or any
beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities, including but not limited to those set forth in
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Agreement.
SECTION 4.02. Cash Distributions; Withholding. Whenever the Custodian or
the Depositary receives any cash dividend or other cash distribution in respect
of any Deposited Securities, the Depositary shall, subject to the provisions of
Section 4.06, cause such dividend or distribution to be converted into dollars
and remitted to the Depositary, and shall promptly distribute the amount thus
received (without liability for interest) to the Holders entitled thereto in
proportion to the number of Rule 144A GDSs representing such Deposited
Securities held by them respectively, after deduction or upon payment of the
fees and expenses of the Depositary or the Custodian; provided, however, that in
the event that the Company, the Custodian or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holders in respect of the
Rule l44A GDSs representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of Rule 144A GDRs then
outstanding. The Company or its agent, or the Depositary or its agent, as
appropriate, will remit to the appropriate governmental authority or agency all
amounts withheld and owing to such authority or agency. The Depositary will
19
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies. The Company shall
take all reasonable steps to file or cause to be filed any such reports
necessary to obtain benefits under any applicable taxation treaties for the
Holders of Rule 144A GDRs.
SECTION 4.03. Distributions Other than Cash, Shares or Rights. Whenever
the Custodian or the Depositary shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall cause the
securities or property received by the Custodian or the Depositary to be
distributed to the Holders entitled thereto, after deduction or upon payment of
the fees and expenses of the Depositary, in proportion to the number of Rule
144A GDSs representing such Deposited Securities held by them respectively, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of
the Depositary it cannot cause such securities or property, in whole or in part,
to be distributed or such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including any requirement
that the Company, the Custodian or the Depositary withhold an amount on account
of taxes or other governmental charges or that such securities must be
registered under the Securities Act in order to be distributed to Holders) the
Depositary deems such distribution not to be feasible, after consultation with
the Company, the Depositary may adopt such method as it may deem equitable or
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the holders entitled thereto as in the case of a distribution
received in cash.
SECTION 4.04. Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of,
additional Shares, the Depositary may, and shall, if the Company so requests,
either (i) distribute to the Holders entitled thereto, in proportion to the
number of Rule 144A GDSs representing such Deposited Securities held by them
respectively, additional Rule 144A GDRs for an aggregate number of Rule 144A
GDSs representing the number of Shares received as such dividend or free
distribution, or (ii) reflect on the records of the Depositary such increase in
the aggregate number of Rule 144A GDSs representing Shares evidenced by the
Master Rule 144A GDR and credit such Rule 144A GDSs to the DTC accounts entitled
thereto in either case after deduction or upon payment of the fees and expenses
of the Depositary; provided, however that if for any
20
reason (including any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such Shares
must be registered under the Securities Act in order to be distributed to
Holders) the Depositary deems such distribution not to be practical or feasible,
the Depositary may adopt such method as it may deem equitable or practicable for
the purpose of effecting such distribution, including the sale (at public or
private sale) of the Shares thus received, or any part thereof and the
distribution of the net proceeds of any such sale to the Holders entitled
thereto as in the case of a distribution received in cash. In lieu of issuing
Rule 144A GDRs for fractional Rule 144A GDSs in any such case, the Depositary
shall sell the number of Shares represented by the aggregate of such fractions
and distribute the net proceeds in dollars, all in the manner and subject to the
conditions described in Section 4.02. If additional Rule 144A GDRs are not so
distributed (except pursuant to the preceding sentence) or such change In the
records of the Depositary is not made (except pursuant to the preceding
sentence), each Rule 144A GDS shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
SECTION 4.05. Rights. In the event that the Company offers or causes to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
the Holders entitled thereto, subject to Section 5.09, or in disposing of such
rights on behalf of such Holders and making the net proceeds available in cash
to such Holders or, if by the terms of such rights offering or by reason of
applicable law, the Depositary may neither make such rights available to such
Holders nor dispose of such rights and make the net proceeds available to such
Holders, then the Depositary shall allow the rights to lapse; provided, however
that the Depositary will, if requested by the Company, take action as follows:
(i) if at the time of the offering of any rights the
Depositary determines that it is lawful and feasible to make such rights
available to all or certain Holders or Beneficial Owners by means of
warrants or otherwise, the Depositary shall, after deduction or upon
payment of the fees and expenses of the Depositary, distribute warrants or
other instruments therefor in such form as it may determine to such
Holders entitled thereto, in proportion' to the number of Rule 144A GDSs
representing such Deposited Securities held by them respectively, or
employ such other method as it may deem
21
feasible in order to facilitate the exercise, sale or transfer of rights
by such Holders, If lawful and feasible; or
(ii) if at the time of the offering of any rights the
Depositary determines that it is not lawful or not feasible to make such
rights available to certain Holders or Beneficial Owners by means of
warrants or otherwise, or if the rights represented by such warrants or
such other instruments are not exercised and appear to be about to lapse,
the Depositary shall use its reasonable efforts to sell such rights or
such warrants or other instruments, if a market therefor is available, at
public or private sale, at such place or places and upon such terms as it
may deem proper, and, after deduction or upon payment of the fees and
expenses of the Depositary, allocate the net proceeds of such sales for
the accounts of the Holders otherwise entitled to such rights, warrants or
other instruments upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Rule 144A GDR or Rule 144A
GDRs, or otherwise, and distribute the net proceeds so allocated to the
extent practicable as in the case of a distribution pursuant to Section
4.02 herein; or
(iii) if at the time of the offering of any rights the
Depositary determines that it is lawful and feasible, it may, in its
discretion, after deduction or upon payment of the fees and expenses of
the Depositary, and upon provision of any documents, statements or
certifications that it may specify, take such action as is necessary for
certain of the rights to be exercised and the securities obtained upon the
exercise thereof to be sold under Regulation S or to be resold under Rule
144A to, or privately placed with, those Holders or Beneficial Owners to
whom such sales or resales may be made or with whom such private placement
may be made without the rights or the securities to which such rights
relate being registered under the Securities Act.
The Depositary will not offer any rights to the Holders or Beneficial
Owners unless and until a registration statement under the Securities Act is in
effect, or unless the offering and sale of such rights or securities to the
Holders or Beneficial Owners are exempt from registration under the provisions
of such Act. The Company shall have no obligation to register such rights or
such securities under the Securities Act.
22
SECTION 4.06. Conversion of Foreign Currency. Whenever the Custodian
receives currency other than dollars (in this Section referred to as "foreign
currency"), by way of dividends, or other distributions or the not proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into dollars which can, at the time of
receipt thereof be transferred to the United States and distributed to the
Holders entitled thereto, the Depositary shall convert or cause to be converted,
by sale or in any other manner that it may determine, such foreign currency into
dollars, and such dollars (less any reasonable and customary expenses incurred
by the Depositary or the Custodian in the conversion of the foreign currency)
shall be promptly distributed to the Holders entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution shall be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion with regard to a particular Holder or distribution can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall file such application for approval or license, if
any, as it may deem desirable.
If at any time the Depositary determines that in its judgment any foreign
currency received by the Depositary is not convertible on a reasonable basis
into dollars distributable to the Holders entitled thereto, or if any approval
or license of any government or authority or agency thereof which is required
for such conversion is denied or in the opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or any appropriate document evidencing the right to
receive such foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency (without liability for interest) for
the respective accounts of, the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some Holders entitled thereto, the Depositary may
in its discretion make such conversion and distribution in dollars to the extent
permissible to the Holders for whom such conversion and distribution is
practicable and may, subject to all applicable currency and exchange
regulations, distribute the balance of the foreign currency received by the
23
Depositary to, or hold such balance for the respective accounts of, the Holders
for whom such conversion and distribution is not practicable.
SECTION 4.07. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever, for any reason, the Depositary causes a change in the
number of Shares that are represented by each Rule 144A GDS or whenever the Rule
144A Depositary shall receive notice of any meeting of holders of Shares or
other Rule 144A Deposited Securities or whenever the Depositary finds it
necessary or convenient in respect of any matter, the Depositary shall fix a
record date after consultation with the Company (which shall be as near as
practicable to the corresponding record date for such distribution or meeting
set by the Company) (a) for the determination of the Holders who shall be
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof or to receive notice as to such meeting, (b) for fixing the
date on or after which each Rule 144A GDS will represent the changed number of
Shares or (c) in respect of other matters. Subject to the provisions of Section
4.02 through 4.07 and to the other terms and conditions of this Agreement, the
Holders on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of the sale thereof and to
exercise the rights of Holders hereunder with respect to such changed number of
Shares represented by each Rule 144A GDS, in proportion to the number of Rule
144A GDSs held by them respectively.
SECTION 4.08. Voting of Deposited Securities. Holders and Beneficial
Owners of Rule 144A GDRs shall not be entitled to instruct the Depositary as to
voting any Deposited Securities. Each Holder and Beneficial Owner shall be
deemed, by acceptance of Rule 144A GDRs or acquisition of any beneficial
interest therein, to have authorized and directed the Depositary to vote or
cause to be voted, or to grant a proxy or power of attorney to vote, the
Deposited Securities as set forth in this Section 4.08. Except as specifically
set forth in this Section 4.08, the Depositary shall not vote or cause to be
voted, or grant any proxy or power of attorney to any person to vote, any
Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or whenever
the Company solicits any proxy or consent from shareholders in lieu of a
shareholders' meeting, provided that the Depositary has received an opinion of
Indian counsel reasonably satisfactory to the Depositary at the expense of the
Company that such
24
action is in conformity with all applicable law and regulation and will not
expose the Depositary to any liability to, or claim by, any person and upon a
signed agreement whereby the Company agrees that it will indemnify the
Depositary and the Custodian and their respective officers, directors and
employees against, and hold them harmless from, any liability or expense
(including fees and disbursements of counsel) which may arise out of or in
connection with any action of the Depositary in voting or causing to be voted,
or in granting any proxy or power of attorney in favor of any person to vote,
any Deposited Securities, the Depositary shall vote or cause to be voted
Deposited Securities as directed in writing by Tata Sons Limited, or give a
proxy or power of attorney to vote Deposited Securities in favor of Tata Sons
Limited, at such meeting or in respect of such solicitation. Absent such a
direction from Tata Sons Limited, the Depositary shall not vote the Shares. Tata
Sons Limited shall have the right to enforce the provisions of this Section
4.08. A valid corporate decision of the Company will bind the Depositary, the
Holders and Beneficial Owners with respect to each party's respective interest
in such shares.
SECTION 4.09. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, consolidation, cancellation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation of the Company or sale of assets
affecting the Company or to which it is a party, any shares, other securities or
other properly which shall be received by the Depositary or the Custodian in
exchange for or in conversion, replacement or otherwise in respect of Deposited
Securities of the Company shall be treated as new Deposited Securities, and the
Rule 144A GDSs shall thenceforth represent the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional or
new Rule 144A GDRs are delivered pursuant to the following sentence. In any such
case the Depositary may, with the Company's approval, and shall, at the
Company's request, execute and deliver additional Rule 144A GDRs or make
appropriate adjustments in its records, as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Rule 144A GDRs to be
exchanged for new Rule 144A GDRs specifically describing such new Deposited
Securities. If the Depositary determines that any such adjustment, delivery or
exchange is not lawful or practicable, the Depositary may, and shall, if the
Company so requests, sell such securities or property at public or private sale
and distribute the net proceeds to the Holders entitled thereto as in the case
of a distribution pursuant to Section 4.02 herein.
25
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Section in respect of the Deposited Securities, the Depositary
shall give notice thereof in writing to all Holders.
SECTION 4.10. Transmittal by the Depositary of Company Notices, Reports
and Communications. The Depositary shall make available for inspection by
Holders at its Principal New York Office and Principal London Office and at the
office of each Custodian copies of this Agreement, any notices, reports or
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary or a Custodian or the
nominee of either, as the holder of the Deposited Securities, and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also send to Holders copies of such notices, reports and
communications when furnished by the Company to the Depositary pursuant to
Section 5.08.
The furnishing of copies of such notices, reports and communications by
the Company to the Depositary for transmittal to the Holders shall not
constitute a recognition by the Company that any such persons have rights as
legal owners of Shares or that notification to such persons is necessary under
Indian law prior to the Company taking any corporate action or shareholder vote.
SECTION 4.11. Withholding. Notwithstanding any other provision of this
Agreement, in the event that the Depositary determines that any distribution of
property (including Shares, rights to subscribe therefor and other securities)
is subject to any tax or governmental charges which the Depositary is obligated
to withhold, the Depositary may dispose of all or a portion of such property
(including Shares, rights to subscribe therefor and other securities) in such
amounts and in such manner as the Depositary deems necessary and practicable to
pay such taxes or governmental charges, including by public or private sale, and
the Depositary shall distribute the net proceeds of any such sale or the balance
of any such property after deduction of such taxes or governmental charges to
the Holders entitled thereto in proportion to the number of Rule 144A GDSs held
by them respectively and the Depositary shall, if feasible without withholding
for or on account of taxes or other governmental charges, without registration
of such Shares or other securities under the Securities Act and otherwise in
compliance with applicable law, distribute any unsold balance of such property
in accordance with the provisions of this Agreement.
26
The Depositary will forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the Company or
its agent to file necessary reports with governmental agencies.
Notwithstanding any other provision of this Agreement, before making any
distribution or other payment on any Deposited Securities, the Company shall
make such deductions (if any) which, under applicable law, the Company is
required to make in respect of any income, capital gains or other taxes and the
Company may also deduct the amount of any tax or governmental charges payable by
the Company or for which the Company might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the Company making such distribution or payment shall
have no obligation to any Holder to apply a rate under any treaty or other
arrangement between the Republic of India and the country within which such
Holder is resident unless such Holder has timely provided to the Company
evidence of the residency of such Holder that is satisfactory to the relevant
tax authorities of the Republic of India.
When requested by the Company prior to the distribution of dividends by
the Company or pursuant to a termination of this Agreement, the Depositary shall
send to all Holders entitled to receive such dividend or subject to such sale of
Shares, as the case may be, a notice in a form which such Company shall provide
requesting evidence of each such Holder's tax residence. The Depositary shall
forward any such evidence received by it to the Company, in the case of
dividends, or to the relevant purchaser or securities company, in the case of
sales of Shares, in order to establish any such Holder's country of tax
residence. The Depositary shall have no obligation or liability to any person if
any Holder fails to provide such evidence or if such evidence does not reach
relevant tax authorities in time for any Holder to obtain the benefit of any tax
treaty.
SECTION 4.12. Available Information. The Company furnishes the Commission
with certain information in accordance with Rule 12g3-2(b) under the Securities
Exchange Act. If at any time prior to the termination of this Agreement the
Company is neither a reporting company under Sections 13 or 15(d) of the
Securities Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b)
under the Securities Exchange Act, the Company will provide to any Holder or
Beneficial Owner, and to any prospective purchaser of Rule 144A GDSs or of
Shares, upon request of such Holder or Beneficial Owner, copies of the
information required by Rule 144A(d)(4) under the Securities Act to permit
compliance with Rule 144A Should the Company become subject
27
to additional information requirements, it shall in accordance therewith file
reports and other information with the Commission.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Agreement in accordance with its terms, the Depositary
shall maintain in the Borough of Manhattan, The City of New York, facilities for
the execution and delivery, registration, registration of transfers and
surrender of Rule 144A GDRs in accordance with the provisions of this Agreement.
The Depositary shall keep books at its Principal New York Office for the
registration of Rule 144A GDRs and transfers of Rule 144A GDRs which at all
reasonable times shall be open for inspection by Holders and the Company,
provided, that such inspection shall not to the Depositary's knowledge be for
the purpose of communicating with Holders in the interest of a business or
object other than the business of the Company or a matter related to this
Agreement, the Rule 144A GDSs or the Rule 144A GDRs, or the Company's Articles
of Association.
The Depositary, with the approval of the Company, may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder, or when requested by
the Company.
If any Rule 144A GDRs or Rule 144A GDSs are listed on one or more stock
exchanges or automated quotation systems in the United States or outside the
United States, the Depositary shall act as Registrar or, at the request or with
the approval of the Company, appoint a Registrar or one or more co-registrars
for registration of such Rule 144A GDRs or Rule 144A GDSs in accordance with any
requirements of such exchange or exchanges or system or systems. Such Registrar
or co-registrars may be removed and a substitute or substitutes appointed by the
Depositary upon the request or with the approval of the Company.
SECTION 5.02. Lists of Holders. Promptly upon request by the Company, the
Depositary shall furnish to them a list, as of a recent date, of the names,
addresses and holdings of Rule 144A GDSs by all persons in whose names Rule 144A
GDRs are registered on the books of the Depositary. Any other records maintained
by the
28
Depositary, the Registrar, any co-registrar or any co-transfer agent under this
Agreement shall be made available to the Company upon reasonable request.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall the Company be subject to
any liability under this Agreement to Holders or Beneficial Owners, except that
the Company agrees to act in good faith and without negligence in the
performance of its obligations set forth in this Agreement.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Agreement to Holders or Beneficial Owners (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that it agrees to act in good faith and without
negligence in the performance of its duties set forth in this Agreement. The
legal relationship created between the Depositary and the Holders and the
Beneficial Owners is not a trust and the Depositary will not be acting as a
trustee for the Holders or the Beneficial Owners.
The Depositary and the Company undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary or the Company.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Rule 144A GDRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required,
and no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or Beneficial
Owner, or any other person believed by it in good faith to be competent to give
such advice or information. The Depositary and its agents and the Company and
its agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
29
SECTION 5.04. Prevention or Delay in Performance by the Depositary or the
Company. Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owner, if by reason of any provision of any present or
future law or regulation of the United States, the Republic of India or any
other country or jurisdiction, or of any other governmental authority, or any
stock exchange, or by reason of any act of God or war or other circumstances
beyond its control, or, in the case of the Depositary, by reason of any
provision, present or future, of the Company's Articles of Association or of any
securities issued or distributed by the Company, or any offering or distribution
thereof the Depositary or the Company or any of their respective directors,
employees, agents or affiliates is prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Agreement or the Deposited Securities it
is provided shall be done or performed; nor shall the Depositary or the Company
incur any liability to any Holder or Beneficial Owner by reason of any
nonperformance or delay, caused as aforesaid, in performance of any act or thing
which by the terms of this Agreement it is provided shall or maybe done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement or the Company's Articles of
Association including, without limitation, any loss occasioned by sale of Shares
or failure to sell Shares in accordance with Section 2.05 hereof. Where, by the
terms of a distribution pursuant to Section 4.02, 4.03 or 4.04 of this Agreement
or an offering or distribution pursuant to Section 4.05 of this Agreement, or
because of applicable law, such distribution or offering may not be made
available to Holders, and the Depositary may not dispose of such distribution or
offering on behalf of such Holders and make the net proceeds available to such
Holders, then the Depositary may make no such distribution or offering, and may
allow any rights, if applicable, to lapse.
SECTION 5.05. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by 60 days' prior written notice of its election so to do delivered to
the Company, such resignation to take effect upon the appointment of a qualified
successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by 60 days' prior
written notice of such removal which shall become effective upon the appointment
of a qualified successor depositary and its acceptance of such appointment as
hereinafter provided.
30
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding Rule 144A GDRs and such other books and records
maintained by such predecessor with respect to its function as Depositary
hereunder. Any such successor depositary shall at its own cost promptly mail
notice of its appointment to the Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.06. Charges of Depositary.
(a) The Holders or Beneficial Owners shall pay:
(i) the fees of the Depositary for (A) the receipt of deposits
and the creation of Rule 144A GDSs pursuant to Sections 2.02 and 2.03
other than the Initial Deposit (any stock dividend pursuant to Section
4.04 or rights offering pursuant to Section 4.05 being deemed for this
purpose to be a creation of the number of Rule 144A GDSs issuable in
respect of the shares distributed as such dividend or received pursuant to
the exercise of such rights) (to be paid by the depositor of Shares or
Holder, as applicable) and (B) surrender of Rule 144A GDSs for the purpose
of withdrawal of Deposited Securities pursuant to Section 2.05 (to be paid
by the person surrendering Rule 144A GDSs for delivery of Deposited
Securities), which in each case shall not exceed $5.00 for each 100 Rule
144A GDSs or potion thereof;
(ii) the fee of the Depositary upon any cash distribution made
pursuant to this Agreement which shall not exceed $0.02 per transaction
for each Rule 144A GDS;
31
(iii) the fee of the Depositary for the creation of Rule 144A
GDSs, if permitted, upon surrender of other depositary shares issued under
other depositary arrangements which shall not exceed $5.00 for each 100
Rule 144A GDSs or portion thereof;
(iv) taxes and other governmental charges;
(v) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the
register or registers of the Company and accordingly applicable to
transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee upon the deposit of Shares pursuant to Section
2.02 or the delivery of shares against surrender of Rule 144A GDSs
pursuant to Section 2.05;
(vi) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in this Deposit Agreement to be at the
expense of persons depositing Shares or Holders or as are incurred at the
request of such persons or Holders; and
(vii) the expenses incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.06 or in connection
with other distributions to holders of Deposited Securities pursuant to
Section 4.02, 4.03, 4.04 or 4.05 of the Deposit Agreement.
(b) The Company shall pay any other charges and expenses of the
Depositary and its agents hereunder only as agreed from time to time between the
Company and the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the Company once
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The fees of the Depositary and the allocation of expenses of the
Depositary may at any tame and from time to time be changed by written agreement
between the Company and the Depositary, subject to and in accordance with
Section 6.01.
SECTION 5.07. The Custodian. The Depositary, after consultation with the
Company, shall from time to time appoint one or more agents to act for it as
Custodian hereunder. The Depositary has initially appointed Citibank, N.A.,
Bombay as custodian and agent of the Depositary for the purpose of this
Agreement. The Custodian in acting hereunder shall be subject at all times and
in all respects to the direction of the Depositary and shall be responsible
solely to it. The Custodian may resign and be discharged from its duties
hereunder by 30 days'
32
prior notice of its election to do so delivered to the Depositary; such
resignation to take effect upon the appointment of a successor Custodian and its
acceptance of such appointment as hereinafter provided. If upon the delivery of
such notice of resignation there shall be no Custodian acting hereunder other
than the Custodian delivering the notice, the Depositary shall, promptly after
receiving such notice and after consultation with the Company, appoint a
substitute custodian which shall thereafter be the Custodian hereunder. The
Depositary, after consultation with the Company, when it reasonably appears to
be in the best interest of the Holders to do so, may appoint a substitute or an
additional custodian, which shall thereafter be a Custodian hereunder. Forthwith
upon its appointment, each such substitute or additional custodian shall deliver
to the Depositary an acceptance of such appointment satisfactory in form and
substance to the Depositary and to the Company. Immediately upon any change, the
Depositary shall at its own expense give notice thereof in writing to all
Holders. Upon demand of the Depositary, any Custodian shall deliver such of the
Deposited Securities as are requested of it to any other Custodian together with
all records maintained by it as Custodian with respect to such Deposited
Securities.
Upon the appointment of any successor depositary hereunder, any Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.08. Notices, Reports and Communications. On or before the first
date on which the Company gives notice, by publication or otherwise, of any
meeting of holders of Shares or of other Deposited Securities or any such
meeting at which such holders are entitled to vote, or of any adjourned meeting
of such holders, or of the taking of any action by such holders other than at a
meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or of other
Deposited Securities.
The Company, at the Company's expense, shall also arrange for the prompt
transmittal to the Depositary of sufficient copies for mailing to all Holders of
such notices and any other notices, reports and communications
33
which are made generally available by the Company to holders of Shares. The
Depositary may, at the Company's expense, obtain sufficient copies of English
translations for mailing to all Holders of any notices, reports or
communications from the Company which are not initially furnished to the
Depositary in English.
The Depositary shall arrange at the Company's expense for prompt mailing
of copies thereof to all holders, and, at the reasonable request and at the
expense of the Company, shall also make such notices, reports and communications
available to all Holders in the same manner as the Company makes them generally
available to holders of Shares or on such other basis as the Company may advise
the Depositary as being required by any law or regulation or any requirement of
any stock exchange to which the Company may be subject, subject to any
limitations imposed by United States law.
SECTION 5.09. Issuance of Additional Shares, etc. In the event of any
issuance of additional Shares or of other securities (including rights and
convertible or exchangeable Securities) as a dividend or distribution with
respect to the Shares or other Deposited Securities represented by Rule l44A
GDSs, or future issuance to Holders for cash of such additional Shares or such
other securities, the Depositary shall not distribute any such additional Shares
or other securities to the Holders unless the Depositary shall have received a
written opinion from counsel in the United States, which counsel shall be
satisfactory to the Depositary and the Company, at the cost of the Company,
stating whether or not the circumstances of such issue are such as to make it
necessary for a registration statement under the Securities Act to be in effect
prior to making such dividend or distribution available to the Holders entitled
thereto and, if in the opinion of such counsel a registration statement is
required, stating that there is a registration statement in effect which will
cover the issuance of such securities.
The Depositary will comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
The Company agrees that in the event of any future issuances of (a)
additional Shares, (b) rights, preferences or privileges to subscribe for
Shares, (c) securities convertible into or exchangeable for Shares, or (d)
rights, preferences or privileges to subscribe for securities convertible into
or exchangeable for Shares (in each event other than as a dividend or
distribution, or issuance for cash to Holders, in each such case as set forth
above), such issuance shall be effected by the Company in a manner so as not to
violate the Securities Act. If the Company
34
determines that an issuance of such securities is requited to be registered
under the Securities Act, the Company shall take one of the following actions:
(x) register such issuance to the extent necessary, (y) alter the terms of the
issuance to avoid the registration requirements of the Securities Act or (z)
direct the Depositary or the Custodian to take such measures as are provided in
Sections 4.03 through 4.05 or other specific measures with respect to the
acceptance for deposit of Shares to prevent such issuance from being made in
violation of the registration requirements of such Act.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Shares hereunder,
either upon original issuance or upon a sale of Shares previously issued and
reacquired by the Company or by any company under its control, unless such
transaction is registered under the Securities Act or is not required to be
registered under the Securities Act as confirmed by an opinion of U.S. counsel.
SECTION 5.10. Indemnification. The Company agrees to indemnify the
Depositary and each Custodian against, and hold each of them harmless from, any
liability or expense which may arise in connection with the offer, issuance,
sale, resale, withdrawal or transfer of Rule 144A GDSs, Rule 144A GDRs or Shares
and any offering documents relating thereto or which may arise out of acts
performed or omitted, including but not limited to any delivery by the
Depositary on behalf of the Company of information regarding the Company or the
exercise of voting rights or giving a proxy or power of attorney to vote the
Shares in accordance with the provisions of Section 4.08 hereof, in accordance
with the provisions of this Agreement and of the Rule 144A GDRs, as the same may
be amended, modified or supplemented from time to time, in any such case, (i) by
either the Depositary or any Custodian or any of their respective agents, except
for any liability or expense arising out of the negligence or bad faith of
either of them, or (ii) by the Company or any of its agents, except to the
extent that such liability or expense arises out of information or the omission
of information relating to the Depositary or to the Custodian, as the case may
be, furnished in writing to the Company by the Depositary or the Custodian
expressly for use in any document relating to the Rule 144A GDSs.
The Depositary agrees to indemnify the Company and its officers, directors
and employees and hold them harmless from any liability or expense which may
arise out of acts performed or omitted by the Depositary due to the negligence
or bad faith of the Depositary.
35
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement and
shall consult in good faith with the indemnifying person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person.
The obligations set forth in this Section 5.10 shall survive the
termination of this Agreement and the succession or substitution of any person
indemnified hereby.
SECTION 5.11. Certain Rights of the Depositary; Limitations. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in Rule 144A GDSs. The Depositary may cause the
issuance of Rule 144A GDSs against rights to receive Shares from the Company, or
any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records on behalf of the Company in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. Neither the Depositary nor the Custodian, in their respective
capacities as such, shall lend Shares or Rule 144A GDSs. The Depositary may not,
without the written consent of the Company, cause the issuance of Rule 144A GDSs
prior to the receipt of Shares pursuant to Section 2.02 or deliver Shares prior
to the receipt and cancellation of Rule 144A GDSs pursuant to Section 2.05.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Rule 144A GDRs and any provisions
of this Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable. Any amendment which shall impose or increase any fees,
charges or expense (other than taxes and other governmental charges, custody,
transfer and registration fees, and other fees and expenses in respect of
transfers or sales of Shares, and delivery expenses and charges incurred by the
Depositary in the conversion of foreign currency and in connection with foreign
exchange control regulations), or which shall otherwise prejudice any
substantial existing right of Holders, shall not, however, become effective as
to outstanding Rule 144A GDRs until the expiration of 30 days after notice of
such amendment shall have been
36
given to the Holders of record of outstanding Rule 144A GDRs. Every Holder and
Beneficial Owner at the time any amendment so becomes effective shall be doomed,
by continuing to hold such Rule 144A GDR or to own any beneficial interest
therein, to consent and agree to such amendment and to be bound by this
Agreement as amended thereby. In no event may any amendment impair the right of
any Holder to surrender such Holder's Rule 144A GDRs and receive the Rule 144A
Deposited Securities represented thereby, or request the Depositary to sell or
cause to be sold the underlying Deposited Securities evidenced by such Rule 144A
GDRs and any other property represented thereby and distribute the proceeds from
the sale thereof to such Holder, except to comply with mandatory provisions of
applicable law.
SECTION 6.02. Termination. The Depositary shall at any time at the
direction of the Company, upon 60 days' prior written notice delivered by the
Company to the Depositary, terminate this Agreement by mailing notice of such
termination to the Holders of all Rule 144A GDRs then outstanding at least 60
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Agreement if the Depositary shall have delivered to
the Company a written notice of its election to resign, and a qualified
successor depositary shall not have been appointed and accepted its appointment,
as provided in Section 5.05 within 90 days after such delivery. If the
Depositary delivers such notice of resignation to the Company and a qualified
successor depositary shall not have, been appointed and accepted such
appointment within such 90 day period, the Depositary, at its expense, shall
deliver notice of such termination of this Agreement to the Holders of all Rule
144A GDRs then outstanding. If any Rule 144A GDRs shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Rule 144A GDRs, shall suspend the distribution of
dividends to the Holders thereof, shall not accept deposits of Shares (and shall
instruct each Custodian to act accordingly), and shall not give any further
notices or perform any further acts under this Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell property and rights and convert
Deposited Securities into cash as provided in this Agreement, and shall continue
to deliver Deposited Securities or the proceeds thereof, as permitted by
applicable law, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any Shares, rights or other
property, in all such cases, without liability for interest, in exchange for
Rule 144A GDSs surrendered to the Depositary. At any time after the expiration
of one year from the date of termination, the Depositary may sell the
37
Deposited Securities then held hereunder and hold the net proceeds of any such
sale, together with any other cash then held by it hereunder, without liability
for interest, for the pro rata benefit of the Holders of Rule 144A GDRs which
have not theretofore been surrendered. After making such sale, the Depositary
shall be discharged from all obligations under this Agreement, except to account
for such net proceeds and other cash. Upon the termination of this Agreement,
the Company shall be discharged from all obligations under this Agreement except
for its obligations to the Depositary under Sections 5.06 and 5.10 hereof. The
obligations of the Depositary under Section 5.10 hereof shall survive the
termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Agreement shall be filed with the Depositary and each Custodian and shall be
open to inspection by any Holder at the Principal New York Office and Principal
London Office of the Depositary and the principal office of any Custodian during
business hours.
SECTION 7.02. No Third-Party Beneficiaries. This Agreement is for the
exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability. In case any one or more of the provisions
contained in this Agreement or in the Rule 144A GDRs should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and the Beneficial Owners shall be parties to this Agreement and
shall be bound by all of the terms and conditions hereof and of the Rule 144A
GDRs by acceptance of a Rule 144A GDR or by acquisition of any beneficial
interest therein.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be in writing and shall be deemed to have been duly given if personally
delivered, or sent by mail (if domestic, first class, if overseas, first class
airmail) or air courier, or by cable, telex or facsimile transmission confirmed
by letter sent by mail or air courier, addressed to Bombay House, 24 ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇, Attention: Company Secretary
38
(telex number: 011-91-011-82618; facsimile ▇▇-▇▇-▇▇▇-▇▇▇▇, or to any other
address which the Company may specify by notice.
Any and all notices to be given to the Depositary shall be in writing and
shall be deemed to have been duly given if personally delivered, or sent by mail
(if domestic, first class, if overseas, first class airmail) or air courier, or
by cable, telex or facsimile transmission confirmed by letter sent by mail or
air courier, addressed to Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Department (telex number: ITT: 420392; RCA:
235530; facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇), or to any other address which the
Depositary may specify by notice.
Any and all notices to be given to any Holder shall be in writing and
shall be deemed to have been duly given if personally delivered, or sent by mail
(if domestic, first class, if overseas, first class airmail) or air courier, or
by cable, telex or facsimile transmission confirmed by letter sent by mail or
air courier, addressed to such Holder at the address of such Holder as it
appears on the transfer books of the Depositary, or, if such Holder shall have
filed with the Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address specified in such
request.
Delivery of a notice sent by mail or air courier shall be deemed to be
effective three days (in the case of domestic mai1 or air courier) or seven days
(in the case of overseas mail) after dispatch, and any notice sent by cable,
telex or facsimile transmission as provided in this Section shall be deemed to
be effective 24 hours after dispatch. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it from
the other or from any Holder, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
39
SECTION 7.06. Governing Law. This Agreement and the Rule 144A GDRs shall
be interpreted and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by the laws of the State of New York.
SECTION 7.07. Prohibition of Assignment. The Depositary may not assign or
otherwise transfer any of its rights or obligations hereunder, except as
otherwise provided herein or with the prior written consent of the Company.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above set forth and all Holders and Beneficial Owners
shall become parties hereto upon acceptance by them of Rule 144A GDRs issued in
accordance with the terms hereof or upon acquisition of any beneficial interest
therein.
TATA ENGINEERING AND LOCOMOTIVE
COMPANY LIMITED
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice Chairman and Managing
Director
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
The undersigned, Tata Sons Limited, hereby joins in the execution of this
Agreement only with respect to the provisions of Section 4.08 hereof and the
enforceability thereof. Tata Sons Limited does not hereby assume any obligation
or responsibility for any other provisions of this Agreement, nor shall Tata
Sons be deemed to be a guarantor of any of the obligations of the Company.
TATA SONS LIMITED
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
EXHIBIT A
Letter of Representations
TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED
(Name of Issuer)
CITIBANK, N.A.
(Name of Depositary)
CITIBANK, N.A.
(Name of Custodian)
July 21, 1994
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel's Office
Re: Rule 144A Global Depositary Receipts ("Rule 144A GDRs")
evidencing Rule 144A Global Depositary Shares ("Rule 144A
GDSs"), International Global Depositary Receipts
("International GDRs" and, together with the Rule 144A GDRs,
the "GDRs") evidencing International Global Depositary Shares
("International GDSs" and, together with the Rule 144A GDS,
the GDSs"), in each case representing ordinary shares, par
value Rs. 10 per share (the "Shares") of Tata Engineering and
Locomotive Company Limited and warrants ("Warrants")
representing the right to purchase one Share, Rule 144A Units
("Rule 144A Units"), each consisting of one Rule 144A GDS and
one Warrant and International Units ("International Units" and
together with the Rule 144A Units, the "Units"), each
consisting of one International GDS, and one Warrant
--------------------------------------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set out certain matters relating to the
above-referenced Rule 144A GDRs evidencing Rule 144A GDSs (CUSIP No. ▇▇▇▇▇▇▇▇▇,
International GDRs evidencing International GDSs (CUSIP No. ▇▇▇▇▇▇▇▇▇), Warrants
representing the right to purchase Shares (CUSIP No. ▇▇▇▇▇▇▇▇▇), Rule 144A
Units, each consisting of one Rule 144A GDS and one Warrant (CUSIP No.
▇▇▇▇▇▇▇▇▇) and International Units, each consisting of one International GDS and
one Warrant (CUSIP No. ▇▇▇▇▇▇▇▇▇) of Tata Engineering and Locomotive Company
(the "Issuer"). Citibank, N.A. is acting as depositary (the "Depositary") for
the Issuer with respect to the Rule 144A GDSs and the International GDSs and as
warrant agent (the "Warrant Agent") for the Issuer with respect to the Warrants.
Citibank, N.A. is acting as custodian (the "Custodian") for The Depository Trust
Company ("DTC") of the Rule 144A Master GDR, the International Master GDR and
the Master Warrant referred to below. The Rule 144A GDSs will be issued pursuant
to a Rule 144A Deposit Agreement, dated as of July 15, 1994 (the "Rule 144A
Document"). The International GDSs will be issued pursuant to an International
Deposit Agreement dated as of July 15, 1994 (the "International Document"). The
Warrants will be issued pursuant to a Warrant Agreement dated as of July 15,
1994 (the "Warrant Agreement"). CS First Boston Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇
A-1
International Limited are reselling the International GDSs and the proportional
number of Warrants necessary to comprise International Units through DTC
pursuant to a Purchase Agreement dated July 15, 1994 (the "International
Purchase Agreement") among the Issuer and the managers named therein (the
"International Managers") and CS First Boston Corporation and ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated are reselling the Rule 144A GDSs and the
proportional number of Warrants necessary to comprise Rule 144A Units through
DTC pursuant to a Purchase Agreement dated July 15, 1994 (the "U.S. Purchase
Agreement", and together with the International Purchase Agreement, the
"Purchase Agreements") among the Issuer and the purchasers named therein (the
"U.S. Purchasers").
To induce DTC to accept the GDSs, the Units and the Warrants as eligible
for deposit at DTC, and to act in accordance with its rules with respect to the
GDSs, the Units and the Warrants, the Issuer, the Depositary, the Warrant Agent
and the Custodian make the following representations to DTC:
1. Prior to closing on the GDSs, the Units and the Warrants on or
about July 25, 1994, there shall be deposited with DTC one master Rule 144A GDR
certificate (the "Master Rule 144A GDR") evidencing all the Rule 144A GDSs, one
master International GDR certificate (the "Master International GDR" and,
together with the Master Rule 144A GDR, the "Master GDRs") evidencing all the
International GDSs and one master Warrant (the "Master Warrant") evidencing all
the Warrants, each registered in the name of DTC's nominee, Cede & Co. Each such
certificate shall remain in the Custodian's custody subject to the provisions of
the FAST Balance Certificate Agreement between the Custodian and DTC dated as of
February 19, 1976. Each Master GDR and the Master Warrant shall bear the
following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the agent authorized by the issuer for
registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
The Rule 144A Master GDR shall bear the following legend:
THIS GLOBAL DEPOSITARY RECEIPT, THE GLOBAL DEPOSITARY SHARES
EVIDENCED HEREBY AND THE SHARES OF THE COMPANY REPRESENTED THEREBY
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE SELLER AND ANY
PERSON ACTING ON ITS BEHALF REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER TILE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ANY
A-2
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
In addition, the Master Rule 144A GDR shall bear the following legend
until the Separation Date (as defined below):
PRIOR TO THE SEPARATION DATE, THE RULE 144A GDSs EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TOGETHER WITH WARRANTS IN THE SAME PROPORTION IN WHICH THE
RULE 144A GDSs AND WARRANTS WERE INITIALLY OFFERED AS RULE 144A
UNITS (AS DEFINED IN THE RULE 144A DEPOSIT AGREEMENT).
Prior to such time, if any, as a registration statement on Form F-6 under
the Securities Act of 1933, as amended, is declared effective, the Master
International GDR shall bear the following legend:
THIS GLOBAL DEPOSITARY RECEIPT, THE GLOBAL DEPOSITARY SHARES
EVIDENCED HEREBY AND THE SHARES OF THE COMPANY REPRESENTED THEREBY
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND, PRIOR TO THE DATE 40 DAYS AFTER THE
LATEST OF THE COMMENCEMENT OF THE OFFERING OF THE INTERNATIONAL
GDSs, THE ORIGINAL ISSUE DATE OF THE INTERNATIONAL GDSs AND THE
ISSUE DATE WITH RESPECT TO THE ADDITIONAL INTERNATIONAL GDSs, IF
ANY, ISSUED TO COVER 0VER-ALLOTMENT5, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) IN THE FORM OF A RULE
144A GDS TO A PERSON WHOM THE SELLER AND ANY PERSON ACTING ON ITS
BEHALF REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, OR (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
In addition, the Master International GDR shall bear the following legend
until the Separation Date:
PRIOR TO THE SEPARATION DATE, THE INTERNATIONAL GDSs EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TOGETHER WITH WARRANTS IN THE SAME PROPORTION IN WHICH THE
INTERNATIONAL GDSs AND WARRANTS WERE INITIALLY OFFERED AS
INTERNATIONAL UNITS (AS DEFINED. IN THE INTERNATIONAL DEPOSIT
AGREEMENT).
The Master Warrant shall bear the following legend:
THE WARRANT AND THE SHARES TO BE PURCHASED UPON EXERCISE
HEREOF HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR WITH ANY SECURITIES
AUTHORITY OF ANY STATE OR OTHER JURISDICTION IN THE UNITED STATES,
AND SUCH SECURITIES MAY
A-3
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT), EXCEPT (A)(1) TO QUALIFIED INSTITUTIONAL
BUYERS IN RELIANCE ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE
SECURITIES ACT, (2) OUTSIDE THE UNTIED STATES IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR BY
OR ON BEHALF OF ANY U.S. PERSON UNLESS THE SHARES ISSUABLE UPON
EXERCISE HEREOF ARE REGISTERED UNDER THE SECURITIES ACT OR ANY
EXEMPTION FROM SUCH REGISTRATIONS IS AVAILABLE AND MAY NOT BE
EXERCISED IN INDIA OR BY OR ON BEHALF OF ANY RESIDENT OF INDIA.
In addition, the Master Warrant shall bear the following Legend until the
Separation Date:
PRIOR TO THE SEPARATION DATE, THE WARRANTS EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
TOGETHER WITH THE GDSs IN THE SAME PROPORTION IN WHICH THE WARRANTS
AND GDSs WERE INITIALLY OFFERED AS INTERNATIONAL UNITS AND RULE l44A
UNITS (AS DEFINED IN THE INTERNATIONAL DEPOSIT AGREEMENT AND THE
RULE 144A DEPOSIT AGREEMENT, RESPECTIVELY).
The International Deposit Agreement, the Rule 144A Deposit Agreement and
the Warrant Agreement provide that the GDSs and the Warrants will be traded
together as Units until after the date (the "Separation Date") which is one
business day after the earliest of (i) [insert date 30 days after the date of
the Offering Circular] (ii) the date of any exercise of the International
Managers' and U.S. Purchasers' over-allotment options pursuant to the Purchase
Agreements and (iii) any date on which CS First Boston Limited irrevocably
waives (by written notice to the Issuer) such over-allotment options pursuant to
the Purchase Agreements on behalf of the International Managers and the U.S.
Purchasers. The Issuer shall send DTC a notice of the Separation Date. Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the Separation Date. After the Separation
Date, the GDSs and the Warrants may trade together or separately. Accordingly,
transfers prior to the Separation Date of beneficial interests in the Master
GDRs must be made in conjunction with transfers of Warrants in the proportion in
which GDSs and Warrants are being offered as Units pursuant to the Offering
Circular dated July 15, l994 of the Issuer pursuant to which the GDSs and
Warrants are being offered.
In the event of a stock split, recapitalization, reorganization or any
other similar transaction resulting in the cancellation of all or any part of
the GDSs or the Deposited Securities (as defined in the Documents) outstanding,
the Depositary shall send DTC a notice of such event as soon as practicable, but
in no event less than five business days prior to the effective date of such
transaction.
2. In the event of a cash dividend payment or other distribution, or an
offering or issuance of rights with respect to the GDSs, the Warrants or the
Deposited Securities outstanding, the Issuer or the Depositary shall send DTC a
notice specifying: (a) the amount of and conditions, if any, applicable to such
payment, distribution or rights offering or issuance; (b) any applicable
expiration or deadline date, or any date by which any action on
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the part of holders of GDRs or Warrants is required; and (c) the date any
required notice is to be mailed to holders of GDRs or Warrant or published (the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Depositary will forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission for multiple
CUSIP numbers (if applicable) which includes a manifest or list of each CUSIP
submitted in that transmission. (The Issuer or Depositary sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be as soon as practicable
after the announcement by the Issuer of any such cash dividend payment,
distribution or offering or issuance of rights with respect to the GDSs, the
Warrants or the Deposited Securities. The Custodian will notify DTC's Dividend
Department of all upcoming cash dividend payments of which it becomes aware. The
Custodian will also notify Standard & Poor's Corporation ("S&P") of all upcoming
cash dividend payments for the purpose of allowing S&P to include an
announcement of such payment in its Dividend Record. After establishing the
United States dollar payment to be made on the GDSs, the Custodian will notify
DTC's Dividend Department of such payment.
3. In the event of an invitation to tender the GDRs, GDSs, the Warrants or
the Deposited Securities, notice to holders of the GDRs or Warrants by the
Depositary specifying the terms of the tender and the Publication Date of such
notice shall be sent to DTC by a secure means in the manner set forth in the
preceding Paragraph addressed as follows:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax numbers: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
4. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the GDSs or the Warrants, as the case may be, affected and
the accompanying description of the GDRs, or the Warrants, as the case may be,
which, as of the date of this letter, is "Sponsored GDRs Rpstg Shares 144A".
5. Notices to the Dividend Department of DTC by telecopy shall be sent to
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC's Dividend Department by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The Custodian shall confirm DTC's receipt of such telecopy by telephoning
the Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇.
6. Payments of dividends or other cash distributions with respect to the
Master GDRs shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same day funds on each payment date (or in accordance with
existing arrangements between the Issuer or the Depositary and DTC). Such
payments shall be made payable to the order of Cede & Co.
7. Other cash payments shall be received by Cede & Co., as nominee of DTC,
or its registered assigns in next day funds on each payment date (or in
accordance with existing arrangements between the Issuer
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or the Depositary and DTC). Such payments shall be made payable to the order of
Cede & Co., and shall be addressed as follows:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
8. DTC may direct, in writing, the Issuer or the Depositary to use any
other telecopy number or address of DTC as the number or address to which
notices or payments may be sent.
9. In the event the Issuer determines that owners of beneficial interests
in the Master GDRs shall be able to obtain separate GDR certificates, the
Depositary shall notify DTC of the availability of such GDR certificates. In
such event, the Depositary shall issue, transfer, and exchange certificates
evidencing GDSs in appropriate amounts, as required by DTC and others.
10. This Letter may be executed in any number of counterparts, but all
such counterparts shall together constitute but one and the same instrument.
11. Nothing herein shall be deemed to require the Depositary to advance
funds on behalf of the Issuer.
12. The representations included on the riders attached hereto are by this
reference made part of this Letter of Representations.
Very truly yours,
TATA ENGINEERING AND LOCOMOTIVE
COMPANY LIMITED, as Issuer
By:
------------------------------------
(Authorized Signatory's Signature)
CITIBANK, N.A., as Depositary
By:
------------------------------------
(Authorized Officer's Signature)
CITIBANK, N.A., as Custodian
By:
------------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
------------------------------------
(Authorized Officer)
A-6
EXHIBIT B
Number ___________ CUSIP Number ▇▇▇▇▇▇▇▇▇
RULE 144A GLOBAL DEPOSITARY SHARES (EACH RULE 144A
GLOBAL DEPOSITARY SHARE REPRESENTING ONE (1) ORDINARY
SHARE OF TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED
(FORM OF FACE OF RULE 144A GDR)
RULE 144A GLOBAL DEPOSITARY RECEIPT
FOR
RULE 144A GLOBAL DEPOSITARY SHARES
REPRESENTING
DEPOSITED SHARES OF COMMON STOCK,
PAR VALUE Rs. 10 PER SHARE, OF
TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED
(Incorporated in the Republic of India as a
public company with limited liability)
DTC LEGEND
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the agent
authorized by the Company for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as requested by an
authorized representative of DTC). ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner here Cede & Co., has an interest herein.
SECURITIES ACT LEGEND
THIS GLOBAL DEPOSITARY RECEIPT, THE GLOBAL DEPOSITARY SHARES EVIDENCED
HERE AND THE SHARES OF THE COMPANY REPRESENTED THEREBY HAVE NOT BEEN REGISTERED
B-1
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AS
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)TO A SELLER AND ANY
PERSON ACTING ON ITS BEHALF REASONABLY BELIEVE INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
IN A TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (B) IN ACCORD APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
LEGEND APPLICABLE UNTIL THE SEPARATION DATE
PRIOR TO THE SEPARATION DATE, THE RULE 144A GDSs EVIDENCED HERE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TOGETHER IN THE SAME PROPORTION IN WHICH
THE RULE 144A GDSs AND WARRANTS OFFERED AS RULE 144A UNITS (AS DEFINED IN THE
INTERNATIONAL DEPOSIT).
INDIAN LEGEND
THIS GLOBAL DEPOSITARY RECEIPT AND THE RULE 144A GDSs EVIDENCED HERE MAY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANY PERSON IN INDIA, TO ANY
RESIDENT OF INDIA OR TO, OR FOR THE ACCOUNT OR BENEFIT OF PERSON.
CITIBANK, N.A.. a national banking association organized and existing
under the law of America, as Depositary (the "Depositary"), hereby certifies
that Cede & Co., as nominated Trust Company, is the owner of that number of Rule
144A Global Depositary Shares indicating the Depositary, representing deposited
ordinary shares of Tata Engineering and Locomotive Company Limited, a limited
liability company organized under the laws of Republic of India as a public
company par value Rs. l0 per share (the "Shares"). At the date of the Deposit
Agreement (as defined 144A Global Depositary Share ("Rule 144A GDS") represents
one Share, subject to amended Article IV of the Deposit Agreement, deposited
under the Deposit Agreement with the Custodian of execution of the Deposit
Agreement is Citibank, N.A., Bombay.
(1) The Deposit Agreement. This Rule l44A Global Depositary Receipts
is one of an issue (herein called the "Rule 144A GDRs"), all issued and to be
issued upon the
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therein agrees to become a party thereto and becomes bound by all the terms and
provisions thereof. The Deposit Agreement sets forth the rights of Holders and
Beneficial Owners of the Rule 144A GDRs and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal New York Office and Principal London Office of the
Depositary and at the principal office of the Custodian. The statements made on
the face and the reverse of this Rule 144A GDR are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby made.
Terms defined in the Deposit Agreement and not otherwise defined herein have the
same defined meanings set forth in the Deposit Agreement.
(2) Surrender of Rule 144A GDRs and Withdrawal of Deposited
Securities. At any time after the date which is 45 days after the latest of the
commencement of the Offering of Rule 144A GDSs, the original issue date of the
Rule 144A GDSs, and the issue date with respect to the additional Rule 144A
GDSs, if any, issued to cover overallotments in connection with the offering of
Rule 144A GDSs, upon (i) surrender at the Principal New York Office or Principal
London Office of the Depositary or such other offices as the Depositary may
designate of a Rule 144A GDR or (ii) receipt by the Depositary of written
instructions from DTC on behalf of any Beneficial Owner surrendering any
beneficial interest in the Master Rule 144A GDR with a corresponding credit to
the Depositary's account at DTC for the Rule 144A GDSs so surrendered, in either
case for the purpose of withdrawal of the Deposited Securities represented by
the Rule 144A GDSs evidenced by a Rule 144A GDR or constituting such person's
beneficial interest, and upon payment of the fee of the Depositary for the
surrender of Rule 144A GDS and withdrawal of Deposited Securities and payment of
all taxes and governmental charges payable in connection with such surrender,
and subject to the terms and conditions of the Deposit Agreement, such Holder
shall be entitled to delivery of the Deposited Securities represented by the
Rule 144A GDSs evidenced by such Rule 144A GDSs or constituting such beneficial
interest to him or upon his order by physical delivery outside the United States
if available, by electronic transfer to an account outside the United States
designated by such person. Such of Deposited Securities shall be made, as
hereinafter provided, without unreasonable delay. Each Beneficial Owner
requesting delivery of Deposited Securities against surrender of a Rule 144A GDR
or
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interest in the Master Rule 144A GDR shall deliver to the Depositary a written
order containing delivery instructions and a certificate and agreement by or on
behalf of the person surrendering Rule 144A GDSs substantially in the form of
Exhibit C-2 to the Deposit Agreement. A Rule 144A GDR surrendered or written
instructions received for such purposes may be required by the Depositary to be
properly endorsed or accompanied by properly executed instruments of transfer.
The Depositary will confirm the receipt of such order with a notice containing
the Securities Act Legend.
Upon the receipt of such order and such certificate and agreement and
compliance with the terms of Section 2.05 of the Deposit Agreement, the
Depositary shall direct the Custodian to deliver at the principal office of such
Custodian or make an electronic transfer as provided above, in each case subject
to Sections 2.06, 3.01 and 3.02 of the Deposit Agreement and to the other terms
and conditions of the Deposit Agreement, to or upon the written order of the
person or persons designated in such written instructions, such Deposited
Securities, except that the Depositary may make delivery to such person or
persons at the Principal New York Office of the Depositary of any cash dividends
or any cash proceeds of the sale of any dividends, distributions or rights with
respect to the Deposited Securities, which may at the time be held by the
Depositary.
At the request, risk and expense of any Holder or Beneficial Owner so
surrendering a Rule 144A GDR or beneficial interest, and for the account of such
Holder or Beneficial Owner, the Depositary shall direct the Custodian to forward
a certificate or certificates (if certificated securities may be delivered) and
other proper documents to title, if any, for such Deposited Securities to the
Depositary for delivery at the Principal New York Office or Principal London
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder or Beneficial Owner, by cable, telex or
facsimile transmission.
The Depositary shall not accept surrender of Rule 144A GDRs or written
instructions for the purpose of withdrawal of less than one Share. In addition,
the Depositary shall only honor requests for withdrawal of whole numbers of
Shares. In the case of surrender of a Rule 144A GDR or surrender of a beneficial
interest in the Master Rule 144A GDR evidencing a number of Rule 144A GDSs
representing other than a whole number of Shares, the Depositary shall cause
delivery of the appropriate whole number of Shares as provided under the Deposit
Agreement, and shall execute and deliver to the person surrendering such Rule
144A GDR a new separate Rule
B-4
144A GDR evidencing Rule 144A GDSs representing any remaining fractional Share
or continue to reflect on its records the remaining Shares as being represented
by Rule 144A GDSs evidenced by the Master Rule 144A GDR.
(3) Transfers, Split-ups and Combinations. Subject to the
limitations stated herein and in the Deposit Agreement, this Rule 144A GDR is
transferable on the books of the Depositary by the Holder hereof in person or by
duly authorized attorney, upon surrender of this Rule 144A GDR properly endorsed
or accompanied by proper instruments of transfer (including signature guarantees
in accordance with standard industry practice and the accurate completion of the
certifications appearing on the reverse hereof relating to compliance with the
restrictions on transfer hereof) and duly stamped as may be required by any
applicable law, and upon payment of the fees of the Depositary. The Depositary
may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties under the
Deposit Agreement. This Rule 144A GDR may be split into other Rule 144A GDRs or
may be combined with other Rule 144A GDRs into one Rule 144A GDR, representing
the same aggregate number of Rule 144A GDSs and registered in the name of the
same Holder as the Rule 144A GDR or Rule 144A GDRs surrendered. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Rule 144A GDR or any beneficial interest in the
Master Rule 144A GDR for the purpose of withdrawal of any Deposited Securities
or adjustment to the Depositary's records in order to reflect deposit of Shares
or such transfer or surrender for withdrawal, the Depositary or the Custodian or
the Company by written instructions to the Depositary may (i) require payment
from the Holder, depositor of Shares or the presenter of a Rule 144A GDR or the
presenter of written instructions of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer, custody or registration
fee with respect thereto and payment of any applicable fees as provided in
Paragraph (7) of this Rule 144A GDR, (ii) production of proof satisfactory to it
as to the identity and genuineness of any signature, including but not limited
to a signature guarantee in accordance with industry practice, (iii) compliance
with any laws or governmental regulations relating to depositary receipts in
general or to the withdrawal of Deposited Securities, (iv) delivery of such
certificates as the Company may from time to time specify in writing to the
Depositary to assure compliance with the Securities Act and rules and
regulations thereunder, and (v) compliance with such other restrictions, if any,
as the Depositary and the Company may establish consistent with the provisions
of the Agreement.
B-5
The Rule 144A GDRs are initially being offered together with the Warrants
in Rule 144A Units. Until after the Separation Date, the Rule 144A GDSs and the
Warrants will be traded together as Rule 144A Units. As used herein, the
Separation Date shall mean the date which is one business day after the earliest
of (i) August 14, 1994, (ii) the date of any exercise of the International
Managers' and U.S. Purchasers' over-allotment options pursuant to the Purchase
Agreements and (iii) any date on which CS First Boston Limited irrevocably
waives such over-allotment options pursuant to the Purchase Agreements on behalf
of the International Managers and the U.S. Purchasers. After the Separation
Date, the Rule 144A GDSs and the Warrants may trade together or separately.
Accordingly, transfers prior to the Separation Date of beneficial interests in
the Master Rule 144A GDR must be made in conjunction with transfers of Warrants
in the proportion in which Rule 144A GDSs and Warrants are being initially
offered as Rule 144A Units pursuant to the Offering Circular dated July 15, 1994
of the Company.
The Depositary may refuse to execute and to deliver Rule 144A GDRs,
register the transfer of any Rule 144A GDR, or make any distribution of, or
related to, Deposited Securities until it has received such proof of
citizenship, residence, exchange control approval, payment of applicable taxes
or governmental charges, legal or beneficial ownership or other information as
it or the Company may deem necessary or proper. After consultation with the
Company, the delivery of Rule 144A GDRs against, or adjustments in the records
of the Depositary to reflect, deposits of Shares generally or of particular
Shares may be suspended or withheld, or the registration of transfer of Rule
144A GDRs in particular instances may he refused, or the registration of
transfer generally may be suspended, or the surrender of outstanding Rule 144A
GDRs or the receipt of written instructions from any person having a beneficial
interest in the Rule 144A GDSs evidenced by the Master Rule 144A GDR for the
purpose of withdrawal of Deposited Securities may be suspended, during any
period when the transfer books of the Depositary, the Company or a transfer
agent are closed, or if any such action is deemed necessary or advisable by the
Company or the Depositary, in good faith, at any time or from time to time in
accordance with the Deposit Agreement.
The Depositary may issue Receipts for evidence of rights to receive Shares
from the Company, or custodian, Registrar, transfer agent, clearing agency or
other entity involved in ownership or transaction in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
owners of Shares furnished on behalf of the holder thereof. The Depositary shall
not lend Shares or Receipt
B-6
Depositary may not, without the written consent of the Company, cause the
issuance of Rule 144A GDSs prior to the receipt of Shares pursuant to Section
2.02 or deliver Shares prior to the receipt and cancellation of Rule 144A GDSs
pursuant to Section 2.05.
(4) Liability of Holder For Taxes and Other Charges. If any tax or
other governmental charge shall become payable with respect hereto or to any
Deposited Securities represented by the Rule 144A GDSs evidenced hereby, such
tax or other governmental charge shall be payable by the Holder hereof to the
Depositary and any Beneficial Owner hereof shall be liable to the Holder
therefor and shall be payable by Beneficial Owners to the Holder. The Depositary
may (and at the request of the Company shall) refuse, and the Company shall be
under no obligation, to effect any registration of transfer of all or any part
of this Rule 144A GDR or any withdrawal of Deposited Securities represented by
the Rule 144A GDSs evidenced hereby until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Holder
hereof any part or all of the Deposited Securities represented by the Rule 144A
GDS evidenced hereby, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge,
the Holder and the Beneficial Owners hereof remaining liable for any deficiency.
(5) Warranties by Depositor. Every person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are validly issued, fully paid and
non-assessable and free of any preemptive rights, and that the person making
such deposit is duly authorized so to do. Such representations and warranties
shall survive the deposit of Shares and issuance of Rule 144A GDRs or
adjustments in the Depositary's records.
(6) Additional Warranties. Every person depositing Shares,
transferring Rule 144A GDRs or any beneficial interest therein, or surrendering
Rule 144A GDRs or any beneficial interest therein and withdrawing Shares under
the Deposit Agreement will be deemed thereby to represent and warrant (a) in the
case of deposits, to have made the representation substantially as set forth in
Exhibit C-1, (b) in the case of surrender for the purpose of withdrawal, to have
made representations and warranties substantially as set forth in Exhibit C-1
and (c) in every such case, to acknowledge that the Rule 144A GDRs, the Rule
144A GDSs and the Shares have not been and will not be registered under the
Securities Act, and may not be offered, sold, pledged or otherwise transferred
except under or in accordance with the restrictions on transfer set forth in the
Securities Act Legend
B-7
that any offers, sales, transfers or other disposition of the Rule 144A GDRs or
say beneficial interest therein or in the Shares or any beneficial interest
therein shall comply with the restrictions set forth in the Securities Act
Legend and to represent and Warrant that such deposit, transfer or surrender and
withdrawal complies with such restrictions. Such representations, warranties and
agreements will survive any such deposit, transfer or surrender and withdrawal.
(7) Charges of Depositary. The Depositary will charge the person
depositing Shares or the Holder as appropriate, a fee for the acceptance of
deposits and the creation of Rule 144A GDSs (any stock dividend pursuant to
Section 4.04 of the Deposit Agreement or rights offering pursuant to Section
4.05 being deemed for the purposes of this paragraph to be a creation of the
number of Rule 144A GDSs issuable in respect of the Shares distributed as such
dividend or received pursuant to the exercise of such rights) which shall not
exceed $5.00 for each 100 Rule 144A GDSs or portion thereof. The Depositary will
charge for creation of Rule 144A GDSs upon surrender of other depositary shares
issued under other depositary arrangements a fee which shall not exceed $5.00
for each 100 Rule 144A GDSs or portion thereof. The Depositary will charge the
party surrendering Rule 144A GDSs for the purpose of withdrawal a fee which
shall not exceed $5.00 for each 100 Rule 144A GDSs or portion thereof so
surrendered. The Depositary will charge the party to whom any cash distribution
is made with respect to Rule 144A GDSs a fee which shall not exceed $0.02 for
each Rule 144A GDS per distribution. Holders of Rule 144A GDRs will pay (i)
taxes and other governmental charges, (ii) share transfer registration fees on
deposits of Shares, (iii) such cable, telex, facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing Shares or Holders and (iv) such expenses as are incurred
by the Depositary in the conversion of foreign currency into United States
dollars or in connection with other distributions to holders of Shares pursuant
to Sections 4.02, 4.03, 4.04 or 4.05 of the Deposit Agreement.
All such fees, charges and expenses may be changed by agreement between
the Depositary and Company at any time and from time to time, subject to and in
accordance with Paragraph (20) of this Rule 144A GDR.
(8) Title to Rule 144A GDRs. Subject to the limitations set forth
herein or in the Deposit Agreement, it is a condition of this Rule 144A GDR, and
every successive Holder hereof by accepting on the same consents and agrees,
that when property endorsed or accompanied by proper instruments (including
signature guarantees in accordance with standard industry practice), and upon
compliance
B-8
restrictions on transfer set forth in the legend appearing above on this Rule
144A GDR, title to this Rule 144A GDR (and to each Rule l44A GDS evidenced
hereby) is transferable by delivery with the same effect as in the case of a
negotiable instrument in accordance with the laws of the State of New York;
provided, however, that the Company and the Depositary, notwithstanding any
notice to the contrary, may deem and treat the Holder of this Rule 144A GDR as
the absolute owner hereof for any purpose, including, without limitation, the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and neither
the Depositary nor the Company shall have any obligation or be subject to any
liability under the Deposit Agreement to any holder hereof unless such holder is
the Holder hereof.
(9) Validity of Rule 144A GDR. This Rule 144A GDR shall not be
entitled to any benefits under the Deposit Agreement or be valid or obligatory
for any purpose, unless this Rule 144A GDR has been executed by the Depositary
by the manual signature of a duly authorized signatory or, if a Registrar for
the Rule 144A GDRs shall have been appointed, such signature may be a facsimile
if this Rule 144A GDR is countersigned by the manual signature of a duly
authorized signatory of such Registrar.
(10) Disclosure of Beneficial Ownership and Ownership Restrictions.
The Company may from time to time request the Holder or former Holders hereof to
provide information as to the capacity in which they hold or held Rule 144A GDRs
and regarding the identity of any other persons then or previously interested in
such Rule 144A GDRs and the nature of such interest and various other matters.
Each such Holder and Beneficial Owner agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to the Deposit
Agreement whether or not still a Holder or Beneficial Owner at the time of such
request.
(11) Available Information. The Company furnishes the Commission
with certain public reports and documents required by the laws of the Republic
of India, the rules of any securities exchange on which any securities of the
Company are listed or otherwise, in accordance with Rule 12g3-2(b) of the
Securities Exchange Act. Should the Company become subject to additional
informational requirements, it will in accordance therewith file reports and
other information with the Commission. If, at any time, the Company is neither
subject to Section 13 or 15(d) of the Securities Exchange Act nor exempt from
reporting pursuant to Rule 12g3-2(b) thereunder, the Company will furnish, upon
request, to any Holder, Beneficial Owner or any owner of Shares represented by
the
B-9
Rule 144A GDSs, or any prospective purchaser designated by any such Holder or
Beneficial Owner, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
Dated:
CITIBANK, N.A.,
Countersigned as Depositary
By: By:
------------------------------ ------------------------------
Authorized Signatory Vice President
The address of the Principal New York Office of the Depositary is ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The address of the Principal London Office of the Depositary is P.O. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
B-10
(FORM OF REVERSE OF RULE 144A GDR)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights. Whenever the Custodian or
the Depositary receives any cash dividend, or other cash distribution in respect
of any Deposited Securities, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can in the judgment of the
Depositary be converted on a reasonable basis into dollars which can, at the
time of receipt thereof be transferred to the United States and distributed to
the Holders entitled thereto and, subject to the provisions of the Deposit
Agreement, convert or cause to be converted such foreign currency into dollars
and will promptly distribute the amount thus received (without liability for
interest) and any other dollars received by the Custodian or Depositary in
respect of Deposited Securities (less any reasonable expenses incurred by the
Depositary in converting such foreign currency) to the Holders entitled thereto,
in proportion to the number of Rule 144A GDSs representing such Deposited
Securities held by them respectively, after deduction or upon payment of the
fees and expenses of the Depositary; provided, however, that the amount
distributed will be reduced by any amounts required to be withheld by the
Company, the Depositary or the Custodian in respect of taxes or other
governmental charges. If in the judgment of the Depositary amounts received in
foreign currency may not be converted on a reasonable basis into dollars
distributable to the Holders entitled thereto, or may not be so convertible for
all of the Holders entitled thereto, the Depositary may in its discretion make
such conversion, if any, and distribution in dollars to the extent permissible
to the Holders entitled thereto and may distribute the balance of the foreign
currency received and not so convertible by the Depositary to, or hold such
balance for the respective accounts of, the Holders entitled thereto.
Whenever the Custodian or the Depositary receives any distribution other
than cash, Shares or rights upon any Deposited Securities, the Depositary will
cause the securities or property received by the Custodian or the Depositary to
be distributed to the Holders entitled thereto, after deduction or upon payment
of the fees and expenses of the Depositary or the Custodian (and without
liability for interest), in proportion to the number of Rule 144A GDSs
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary any
B-11
distribution other than cash, Shares or rights upon any Deposited Securities
cannot be made proportionately among the Holders entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible; after
consultation with the Company, the Depositary may adopt such method as it may
deem equitable or practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, and the net proceeds of any such sale will
be distributed by the Depositary to the Holders entitled thereto as in the case
of a distribution received in cash.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, additional Shares, the Depositary may with the
Company's approval, and will if the Company so requests, either (i) distribute
to the Holders entitled thereto, in proportion to the number of Rule 144A GDSs
representing such Deposited Securities held by them respectively, additional
Rule 144A GDRs for an aggregate number of Rule 144A GDSs representing the number
of Shares received as such dividend or free distribution, or (ii) reflect on the
records of the Depositary such increase in the aggregate number of Rule 144A
GDSs representing Shares, evidenced by the Master Rule 144A GDR and credit such
Rule 144A GDSs to the DTC accounts entitled thereto, in either case after
deduction or upon payment of the fees and expenses of the Depositary or the
Custodian (and without liability for interest); provided, however that if for
any reason (including any requirement that the Company or the Depositary
withhold, or make an advance payment of, an amount on account of taxes or other
governmental charges or that such Shares must be registered under the Securities
Act in order to be distributed to Holders) the Depositary deems such
distribution for any reason not to be practical or feasible, the Depositary may,
(i) adopt such method as it may deem equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private sale)
of the Shares thus received, or any part thereof, and the distribution of the
net proceeds of any such sale to the Holders entitled thereto as in the case of
a distribution received in cash, or (ii) refrain from effecting such
distributions altogether. In lieu of issuing Rule 144A GDR for fractional Rule
144A GDSs in any such case, the Depositary will sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
in dollars (if such conversion may in the judgment of the Depositary be achieved
on a reasonable basis), to the Holders entitled thereto. If additional Rule 144A
GDRs are not so distributed or such adjustment in the Depositary's records made,
each Rule 144A GDS will thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
B-12
In the event that the Company offers or causes to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary will have discretion as
to the procedure to be followed in making such rights available to the Holders
entitled thereto, subject to Section 5.09 of the Deposit Agreement, or in
disposing of such rights on behalf of such Holders and making the net proceeds
available in cash to such Holders or, if by the terms of such rights offering or
by reason of applicable law, the Depositary may neither make such rights
available to such Holders nor dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse;
provided, however, that the Depositary will, if requested by the Company, either
(a) if it is lawful and feasible, make such rights available to all or certain
Holders or Beneficial Owners by means of warrants or instruments in proportion
to the number of Rule 144A GDSs representing such Deposited Securities held by
them respectively, or employ such other method as it may deem feasible in order
to facilitate the exercise, sale or transfer of rights by such Holders or the
sale or resale of securities obtainable upon exercise of such rights by such
Holders if lawful and feasible (b) if making such rights available to certain
Holders or Beneficial Owners is not lawful or not feasible, or if the rights
represented by such warrants or other instruments are not exercised and appear
to be about to lapse, make reasonable efforts to sell such rights or warrants or
other instruments, if a market therefor is available, at public or private sale,
at such place or places and upon such terms as the Depositary may deem proper,
and after deduction or upon payment of the fees and expenses of the Depositary,
allocate the net proceeds of such sales for the accounts of the Holders
otherwise entitled thereto upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange restrictions
or the date of delivery of any Rule 144A GDR or Rule 144A GDRs, or otherwise,
and distribute the net proceeds allocated to the extent practical as in the case
of a distribution pursuant to Section 4.02 of the Deposit Agreement or (c) if it
is lawful and feasible, the Depositary may, in its discretion, after deduction
or upon payment of the fees and expenses of the Depositary, and upon provision
of any documents, statements or certificates that it may specify, take such
action as is necessary for certain of the rights to be exercised and securities
obtained upon the exercise thereof to be sold under Regulation S or to be resold
under Rule 144A, or privately placed with, those Holders or Beneficial Owners to
whom such sales or resales may be made or with whom such private placement may
be made without the rights or the securities to which such rights relate being
registered under the Securities Act.
B-13
(13) Record Dates. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever, for any reason, the Depositary causes a change in the
number of Shares that are represented by each Rule 144A GDS, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Rule 144A Deposited Securities or whenever the Depositary finds it necessary or
convenient in respect of any matter, the Depositary will fix a record date after
consultation with the Company (which shall be as near as practicable to the
corresponding record date for such distribution or meeting set by the Company)
(a) for the determination of the Holders who will be entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or to
receive notice as to such meeting (b) for fixing the date on or after which each
Rule 144A GDS will represent the changed number of Shares or (c) in respect of
other matters.
(14) Voting of Deposited Securities. Holders and Beneficial Owners
of Rule 144A GDRs shall not be entitled to instruct the Depositary as to voting
any Deposited Securities. Each Holder and Beneficial Owner shall be deemed, by
acceptance of Rule 144A GDRs or acquisition of any beneficial interest therein,
to have authorized and directed the Depositary to vote or cause to be voted, or
to grant a proxy or power of attorney to vote, the Deposited Securities as set
forth in Section 4.08 of the Deposit Agreement. Except as specifically set forth
therein, the Depositary shall not vote or cause to be voted, or grant any proxy
or power of attorney to any person to vote, any Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or whenever
the Company solicits any proxy or consent from shareholders in lieu of a
shareholders' meeting, provided that the Depositary has received an opinion of
Indian counsel satisfactory in form and substance to the Depositary at the
expense of the Company that such action is in conformity with all applicable law
and regulation and will not expose the Depositary to any liability to, or claim
by, any person and a signed agreement whereby the Company agrees that it will
indemnify the Depositary and the Custodian and their respective officers,
directors and employees against, and hold them harmless from, any liability or
expense (including fees and disbursements of counsel) which may arise out of or
in connection with any action of the Depositary in voting or causing to be
voted, or in granting any proxy or power of attorney in favor of any person to
vote, any Deposited Securities, the Depositary shall vote or cause to be voted
Deposited
B-14
Securities as directed in writing by Tata Sons Limited, or give a proxy or power
of attorney to vote Deposited Securities in favor of Tata Sons Limited, at such
meeting or in respect of such solicitation.
(15) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation of the Company or sale of assets affecting the Company or to which
it is a party, any Shares, other securities or other property which shall be
received by the Depositary or the Custodian in exchange for or in conversion,
replacement or otherwise in respect of Deposited Securities will be treated as
new Deposited Securities under the Deposit Agreement, and the Rule 144A GDSs
shall thenceforth represent the right to receive new Deposited Securities so
received in exchange or conversion, unless additional or new Rule 144A GDRs are
delivered pursuant to the following sentence. In any such case the Depositary
may with the Company's approval, and will, if the Company so requests, execute
and deliver additional Rule 144A GDRs or make appropriate adjustments in its
records, as in the case of a stock dividend on the Shares, or call for the
surrender of outstanding Rule 144A GDRs to be exchanged for new Rule 144A GDRs
specifically describing such new Deposited Securities. If the Depositary
determines that any such adjustment, delivery or exchange is not lawful or
practicable, the Depositary may, and shall, if the Company so requests, sell
such securities or property at public or private sale and distribute the net
proceeds to the Holders entitled thereto as in the case of a distribution
received in cash. Immediately upon the occurrence of any such change, conversion
or exchange covered by Section 4.09 of the Deposit Agreement in respect of the
Deposited Securities, the Depositary will give notice thereof in writing to all
Holders.
(16) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders at its Principal New York Office and
Principal London Office and at the principal office of each Custodian copies of
the Deposit Agreement and any notices, reports or communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary or a Custodian or the nominee of either, as the
holder of the Deposited Securities, and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary will also
send to Holders copies of such notices, reports and communications when
furnished by the Company as provided in the Deposit Agreement. The furnishing of
copies of such notices, reports and communications by the Company to the
Depositary for transmittal to the Holders
B-15
shall not constitute a recognition by the Company that any such persons have
rights as legal owners of Shares or that notification to such persons is
necessary under Indian law prior to the Company taking any corporate action or
shareholder vote. The Depositary will keep books at its Principal New York
Office and Principal London Office for the registration of Rule 144A GDRs and
their transfer which at all reasonable times will be open for inspection by
Holders and the Company, provided that such inspection shall not to the
Depositary's knowledge be for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or a
matter related to the Deposit Agreement, the Rule 144A GDSs or the Rule 144A
GDRs. After giving notice reasonably in advance to the Company, the Depositary
may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties under the
Deposit Agreement.
(17) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution of
property (including Shares or rights to subscribe therefor and other securities)
is subject to any tax or governmental charges which the Depositary is obligated
to withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor and other securities) in such
amounts and in such manner as the Depositary deems necessary and practicable to
pay such taxes or governmental charges, including by public or private sale, and
the Depositary will distribute the net proceeds of any such sale or the balance
of any such property after deduction of such taxes or governmental charges to
the Holders entitled thereto.
(18) Liability of the Company and the Depositary. Neither the
Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates will incur any liability to any Holder or Beneficial Owner
of this Rule 144A GDR, if by reason of any provision of any present or future
law or regulation of the United States, the Republic of India or any other
country or jurisdiction, or of any other governmental authority, or any stock
exchange, or by reason of any act of God or war or other circumstances beyond
its control, or, in the case of the Depositary, by reason of any provision,
present or future, of the Articles of Incorporation of the Company, or of any
securities issued or distributed by the Company, or any offering or distribution
thereof, the Depositary or the Company or any of their respective directors,
employees, agents or affiliates is prevented, delayed or forbidden from, or be
subject to, any civil or criminal penalty on account of doing or performing any
B-16
act or thing which by the terms of the Deposit Agreement or the Deposited
Securities it is provided shall be done or performed. Neither the Company nor
the Depositary assumes any obligation or shall be subject to any liability under
the Deposit Agreement to Holders or Beneficial Owners, except that each of them
agrees to use its best judgment and to act in good faith in the performance of
such duties as are specifically set forth in the Deposit Agreement. The
Depositary and the Company undertake to perform such duties and only such duties
as are specifically set forth in the Deposit Agreement, and no implied covenants
or obligations shall be read into the Deposit Agreement against the Depositary
or the Company. Neither the Depositary nor the Company will be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Rule 144A
GDRs, which in its opinion may involve it in expense and liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required, and no Custodian will be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company will be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or Beneficial Owner, or any other person believed by it in
good faith to be competent to give such advice or information. Each of the
Depositary and its agents and the Company and its agents may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. Subject to the provisions of the Deposit Agreement,
the Depositary may own and deal in any class of securities of the Company (and
its affiliates) and in Rule 144A GDRs.
The Company agrees to indemnify the Depositary and each Custodian against,
and hold each of them harmless from, any liability or expense which may arise in
connection with the offer, issuance, sale, resale, withdrawal or transfer of
Rule 144A GDSs, Rule 144A GDRs or Shares and any offering documents relating
thereto or which may arise out of acts performed or omitted, including but not
limited to any delivery by the Depositary on behalf of the Company of
information regarding the Company or the exercise of voting rights or giving a
proxy or power of attorney to vote the shares in accordance with the provisions
of Section 4.08 of the Deposit Agreement, in accordance with the provisions of
the Deposit Agreement and of the Rule 144A GDRs, as the same may be amended,
modified or supplemented from time to time, in any such case (i) by either the
Depositary or any
B-17
Custodian or any of their respective agents, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by the
Company or any of its agents, except to the extent that such liability or
expense arises out of information or the omission of information relating to the
Depositary or to the Custodian, as the case may be, furnished in a signed
writing to the Company by the Depositary expressly for use in any document
relating to the Rule 144A GDRs evidencing the Rule 144A GDSs.
The Depositary agrees to indemnify the Company and its officers, directors
and employees and hold them harmless from any liability or expense which may
arise out of acts performed or omitted by the Depositary due to the negligence
or bad faith of the Depositary.
(19) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by 60 days' prior written notice of its election so to do delivered to
the Company, such resignation to take effect upon the appointment of a qualified
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
60 days' prior written notice of such removal, which will become effective upon
the appointment of a qualified successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may, after
consultation with the Company, appoint a substitute or an additional custodian
and the term "Custodian" shall also refer to such substitute or additional
custodian.
(20) Amendment of Deposit Agreement and Rule 144A GDRs. The form of
the Rule 144A GDRs and the Deposit Agreement may at any time and from time to
time be amended by agreement between the Company and the Depositary. Any
amendment which imposes or increases any fees or charges (other than the taxes
or other governmental charges, custody, transfer and registration fees, and
other fees and expenses in respect of transfers or sales of Shares, delivery
expenses and charges incurred by the Depositary in the conversion of foreign
currency and in connection with foreign exchange control regulations), or which
otherwise prejudices any substantial existing right of Holders, shall not,
however, become effective as to outstanding Rule 144A GDRs until the expiration
of 30 days after notice of such amendment has been given to the Holders of
record of outstanding Rule 144A GDRs. Every Holder and Beneficial Owner of this
Rule 144A GDR at the time any amendment so becomes effective shall be deemed, by
continuing to hold this Rule 144A GDR or to own any beneficial interest herein,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby.
B-18
(21) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company, upon 60 days' prior written notice
delivered by the Company to the Depositary, terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Rule 144A GDRs then
outstanding at least 60 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement if the
Depositary has delivered to the Company a written notice of its election to
resign, a qualified successor depositary has not been appointed and accepted its
appointment within 90 days after such delivery. If any Rule 144A GDRs shall
remain outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Rule 144A GDRs, will suspend the
distribution of dividends to the holders thereof, will not accept deposits of
Shares (and will instruct each Custodian to act accordingly) and will not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary will continue the collection of dividends and other
distributions pertaining to Deposited Securities, will sell property and rights
and convert Deposited Securities into cash as provided in the Deposit Agreement,
and will continue to deliver Deposited Securities or the proceeds thereof, as
permitted by applicable law, together with any dividends or other distributions
received with respect thereto and the next proceeds of the sale of any Shares,
rights or other property, in all such cases, without liability for interest, in
exchange for Rule 144A GDSs surrendered to the Depositary. At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by it
hereunder, without liability for interest, for the pro rata benefit of the
Holders of Rule 144A GDRs which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations under
the Deposit Agreement, except to account for such net proceeds and other cash.
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _______________ whose taxpayer identification number is
_______________ and whose address including postal zip code is _______________
the within Rule 144A GDR and all rights thereunder, hereby irrevocably
constituting and appointing _______________ attorney-in-fact to transfer said
Rule 144A GDR on the books of the Depositary with full power of substitution in
the premises.
B-19
In connection with the transfer of this Rule 144A GDR, the undersigned
Holder certifies that:
(Check one)
|_| (a) This Rule 144A GDR is being transferred to a person who the
undersigned Holder reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A under the
Securities Act in a transaction meeting the requirements of
Rule 144A.
|_| (b) This Rule 144A GDR is being transferred in an offshore
transaction in accordance with Rule 903 or 904 of Regulation S
under the Securities Act.
If none of the boxes above is checked, the Depositary shall not be
obligated to register this Rule 144A GDR in the name of any person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein, on the face hereof and in the Deposit Agreement
shall have been satisfied.
In connection with the transfer of this Rule 144A GDR prior to the
Separation Date, the undersigned Holder certifies that this Rule 144A GDR is
being transferred together with the Warrants in the same proportion in which the
Rule 144A GDSs and Warrants are originally offered as Rule 144A Units.
Dated: _______________________ Name: ________________________________
By: ____________________________
Title: _________________________
NOTICE: The signature of the
Holder to this assignment must
correspond with the name as
written upon the face of the
within instrument in every
particular, without alteration
or enlargement or any change
whatsoever
SIGNATURE GUARANTEED
______________________________
B-20
EXHIBIT C-1
Certification and Agreement of
Acquirors of
Rule 144A GDSs Upon Deposit of Shares Pursuant
to Section 2.02 of the Rule 144A
Deposit Agreement
We refer to the Rule 144A Deposit Agreement, dated as of July 15, 1994
(the "Deposit Agreement"), among Tata Engineering and Locomotive Company Limited
(the "Issuer"), Citibank, N.A., as Depositary, Tata Sons Limited and Holders and
Beneficial Owners from time to time of Rule 144A Global Depositary Receipts
("Rule 144A GDRs") issued thereunder. Capitalized terms used but not defined
herein shall have the meanings given them in the Deposit Agreement.
1. This certification and agreement is furnished in connection with
the deposit of Shares and the creation of Rule 144A Global Depositary Shares
("Rule 144A GDSs") to be evidenced by one or more Rule 144A GDRs pursuant to
Sections 2.02 and 2.03 of the Deposit Agreement.
2. We acknowledge (or if we are acting for the account of another
person, such person has confirmed to us that it acknowledges) that the Rule l44A
GDRs, the Rule 144A GDSs evidenced thereby and the Shares represented thereby
have not been and will not be registered under the Securities Act of 1933 (the
"Securities Act").
3. We certify that either:
A. We are a qualified institutional buyer (as defined in Rule
144A under the Securities Act), and at the time of issuance of
the Rule 144A GDRs referred to above, we (or one or more
qualified institutional buyers for whose account we are
acting) will be the beneficial owner of the Rule 144A GDSs
evidenced thereby.
OR
B. We are a broker-dealer acting for the account of our customer;
our customer has confirmed to us that it is a qualified
institutional buyer and either (i) at the time of issuance of
the Rule 144A GDRs referred to above, it will be the
beneficial owner of the Rule 144A GDSs evidenced thereby, or
(ii) it is acting for the account of a qualified institutional
buyer that, at the time of issuance of the Rule 144A GDRs
referred to above, will be the beneficial owner of the Rule
144A GDSs evidenced thereby.
4. We agree (or if we are acting for the account of another person,
such person has confirmed to us that it agrees) that we (or it) will not offer,
sell, pledge or otherwise transfer Rule 144A GDRs, Rule 144A GDSs evidenced
thereby or the Shares represented thereby except (a) to a person whom we
reasonably believe (or it and anyone acting on its behalf reasonably believes)
is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act in a transaction meeting the requirements of Rule 144A, (b) in an
C-1-1
offshore transaction complying with Rule 903 or 904 of Regulation S under the
Securities Act, or (c) pursuant to an exemption from registration provided by
Rule 144 under the Securities Act (if available), in each case in accordance
with any applicable securities laws of any state of the United States.
Very truly yours,
--------------------------------
[NAME OF CERTIFYING ENTITY]
--------------------------------
Title:
Date:
C-1-2
EXHIBIT C-2
Certificate and Agreement of Persons Surrendering
Rule 144A Global Depositary Shares for
the Purpose of Withdrawal Pursuant to
Section 2.05 of the Rule 144A
Deposit Agreement
We refer to the Rule 144A Deposit Agreement, dated as of July 15, 1994
(the "Deposit Agreement"), among Tata Engineering and Locomotive Company Limited
(the "Issuer"), Citibank, N.A., as Depositary thereunder, Tata Sons Limited and
Holders and Beneficial Owners from time to time of Rule 144A Global Depositary
Receipts (the "Rule 144A GDRs") issued thereunder. Capitalized terms used but
not defined herein shall have the meanings given them in the Deposit Agreement.
1. We are surrendering Rule 144A Global Depositary Shares ("Rule
144A GDSs") in accordance with the terms of the Deposit Agreement for the
purpose of withdrawal of the Deposited Securities represented thereby (the
"Shares") pursuant to Section 2.05 of the Deposit Agreement.
2. We acknowledge (or if we are acting for the account of another
person, such person has confirmed that it acknowledges) that the Shares have not
been and will not be registered under the Securities Act of 1933 (the
"Securities Act").
3. We certify that either:
(a) We are a qualified institutional buyer (as defined in Rule 144A
under the Securities Act) acting for our own account or for the account of
one or more qualified institutional buyers, and either:
(i) we have (or it has) sold or otherwise transferred,
or agreed to sell or otherwise transfer and at or prior to the time
of withdrawal will have sold or otherwise transferred, the Rule 144A
GDSs or the Shares in accordance with Regulation S under the
Securities Act and we are (or it is), or prior to such sale we were
(or it was), the beneficial owner of the Rule 144A GDSs, or
(ii) we have (or it has) sold or otherwise transferred,
or agreed to sell or otherwise transfer and at or prior to the time
of withdrawal will have sold or otherwise transferred, the Rule 144A
GDSs or the Shares to another qualified institutional buyer in
accordance with Rule 144A under the Securities Act and we are (or it
is), or prior to such sale we were (or it was), the beneficial owner
of the Rule 144A GDSs, or
(iii) we (or it) will be the beneficial owner of the
Shares upon withdrawal, and, accordingly, we agree (or if we are
acting for the account of one or more qualified institutional
buyers, each such qualified institutional buyer has confirmed to us
that it agrees) that (x) we (or it) will not offer, sell, pledge or
otherwise transfer the Shares except (A) to a person whom, we
reasonably believe (or it and anyone acting on its behalf reasonably
believes) is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act in a transaction meeting the
requirements of Rule 144A, (B) in accordance with Rule 903 or 904 of
Regulation S under the Securities Act or (C) pursuant to an
exemption from registration under the Securities Act provided by
Rule 144 thereunder (if available), in each case in accordance with
any applicable securities laws of any state of the United States,
and (y) we (or it) will not deposit or cause to be deposited such
Shares into any depositary receipt facility established or
maintained by a depositary bank (including any such facility
maintained by the Depositary), other than a Rule
C-2-1
144A restricted depositary receipt facility, so long as such Shares
are "restricted securities" within the meaning of Rule l44(a)(3)
under the Act.
OR
(b) We are located outside the United States (within the meaning of
Regulation S under the Act); we acquired, or have agreed to acquire and at
or prior to the time of withdrawal will have acquired, the Rule 144A GDSs
or the Shares outside the United States (within the meaning of Regulation
S); and we are, or upon acquisition thereof will be, the beneficial owner
of the Rule 144A GDSs or the Shares.
4. If we are a broker-dealer, we further certify that we are acting
for the account of our customer and that our customer has confirmed the accuracy
of the representations contained in paragraph 3 hereof that are applicable to it
(including the representations with respect to beneficial ownership) and, if
paragraph 3(a)(iii) is applicable to our customer, has confirmed that it will
comply with the agreements set forth in paragraph 3(a)(iii).
Very truly yours,
--------------------------------
[NAME OF CERTIFYING ENTITY]
--------------------------------
Title:
Dated:
C-2-2