Exhibit (c)(x)
TATA MOTORS LIMITED
BOMBAY HOUSE, 24 XXXX XXXX STREET
BOMBAY 400 001
INDIA
April 27, 2004
To,
Citibank, N.A.
ADR Department
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Tata Motors Limited (the "Company") -- Depositary Receipt Facilities
Ladies and Gentlemen:
We refer to the International Deposit Agreement, dated as of July
15, 1994, as amended on July 19, 1996, August 13, 1996 and September 30, 2002
and supplemented on August 19, 2002 and July 31, 2003, among the Company,
Citibank, N.A, as Depositary and all Holders and Beneficial Owners of
International Global Depositary Receipts issued thereunder (the "International
Deposit Agreement"). Terms used herein but not otherwise defined herein shall
have the meaning ascribed to them in the International Deposit Agreement.
This Letter Agreement confirms our understanding and agreement as
follows:
1. Deposit of Shares. The Company and the Depositary hereby agree
that the common shares of the Company, par value Rs. 10 per share (the
"Shares"), to be delivered upon conversion of the Zero Coupon Convertible Notes
due 2009 (the "2009 Notes") and the 1% Convertible Notes due 2011 (the "2011
Notes" and, together with the 2009 Notes, the "Notes") initially offered and
sold outside the United States in reliance on Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), pursuant to the
Purchase Agreement dated April 20, 2004, among the Company and the Initial
Purchasers named therein (the "Purchase Agreement") may be deposited with the
Custodian under the International Deposit Agreement, in accordance with the
terms hereof and thereof. The Company hereby confirms that the Shares to be
deposited with the Custodian upon conversion of the Bonds will rank pari passu
in all respects with and will be fully fungible (including with respect to
listing) with the Shares then on deposit with the Custodian under the
International Deposit Agreement. This Letter Agreement shall be deemed to
constitute an agreement between the Company and the Depositary with respect to
the deposit of the Shares as required by Section 2.02 of the International
Deposit Agreement.
2. Issuance of International GDSs. The Company and the Depositary
hereby agree to the Depositary issuing International GDSs against the deposit of
Shares to be delivered upon conversion of the Notes subject to compliance with
the terms and conditions of the International Deposit Agreement including,
without limitation, receipt by the Depositary of applicable fees and deposit
certifications which certifications notwithstanding
anything to the contrary in the International Deposit Agreement may be in the
form of Exhibit A hereto.
3. Delivery of International GDRs. The Depositary hereby agrees to
deliver depositary receipts evidencing International GDSs representing Shares in
accordance with the International Deposit Agreement upon receipt of the opinions
referred to in Section 5 below.
4. Representations and Warranties. The Company hereby represents and
warrants to the Depositary that the terms of the Purchase Agreement provide that
the Notes will be resold by the several Initial Purchasers named in the Purchase
Agreement in accordance with Regulation S under the Securities Act.
5. Opinions. Upon issuance of the Notes, the Company shall provide
the Depositary with (i) an opinion of its Indian counsel reasonably satisfactory
to the Depositary which addresses, among other things, that this letter
agreement is enforceable, all consents and approvals necessary under Indian law
for issuance and deposit of the Shares with the Custodian have been obtained,
such Shares are duly authorized, and, at the time International GDSs are issued
in respect thereof, such Shares will be validly issued, fully paid and
non-assessable and any preemptive or other rights with respect thereto will have
been exercised or validly waived and (ii) an opinion of its U.S. counsel which
addresses, among other things, that no registration under the Securities Act of
the Notes and the Shares and International GDSs issuable upon conversion of the
Bonds is required.
6. Conversion Notices. The Company agrees that, immediately upon
being notified that a bond conversion notice has been submitted to the
conversion agent requesting the issuance of International GDSs, it will forward,
or cause to be forwarded, to the Depositary and the Custodian a copy of such
conversion notice (including the certifications by the converting bondholder(s)
contained therein).
7. Depositary Fees. The Company and the Depositary agree that the
Depositary shall, as contemplated in the International Deposit Agreement, be
authorized to charge to the person receiving the International GDRs issued in
connection with a conversion of Notes a depositary fee of up to US$0.05 per
International GDS issued.
8. Fractional Shares and GDSs. Notwithstanding anything to the
contrary in the International Deposit Agreement, the Company will not deliver to
the Depositary or the Custodian in connection with the issuance of GDSs upon
conversion of Notes, and the Depositary shall not be required to accept under
any circumstances (a) any fraction of a Share nor (b) a number of Shares which
upon application of the GDS to Shares ratio would give rise to a fraction of a
GDS.
9. Miscellaneous.
(a) The parties hereto acknowledge and agree that the
indemnification obligations contained in Section 5.10 of the International
Deposit Agreement shall apply to all of the terms, conditions, obligations and
performances under this Letter Agreement as if they were set forth in the
International Deposit Agreement.
(b) The parties hereto agree to duly execute and deliver, or cause
to be duly executed and delivered, such further documents and instruments and do
and cause to be done such further acts, as may be reasonably requested by the
other party in order to implement the terms and provisions of this Letter
Agreement and to effectuate the purpose and intent hereof.
(c) This Letter Agreement shall be interpreted and all rights
hereunder and the provisions hereof shall be governed by the laws of the State
of New York.
(d) This Letter Agreement shall be binding upon the parties hereto,
and their respective legal successors and permanent assigns.
(e) This Letter Agreement may not be modified or amended except by a
writing signed by both parties hereto.
(f) This Letter Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which, taken together, shall
constitute one and the same instrument.
Kindly indicate your acceptance and agreement to the foregoing by
signing this letter below in the space provided.
TATA MOTORS LIMITED
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Director
Accepted and Agreed
as of the date first written above
CITIBANK, N.A.,
as Depositary
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
CERTIFICATE AND AGREEMENT OF ACQUIRORS OF
RECEIPTS UPON DEPOSIT OF SHARES PURSUANT T0
SECTION 2.02 OF THE DEPOSIT AGREEMENT(1)
We refer to the International Deposit Agreement dated as of July 15,
1994 (the "Original Deposit Agreement"), among Tata Motors Limited (the
"Issuer"), Citibank, N.A., as Depositary thereunder, and all Holders and
Beneficial Owners from time to time of International Global Depositary Receipts
("International GDRs") issued thereunder, as amended on July 19, 1996, August
13, 1996 and September 30, 2002 and supplemented on August 19, 2002, July 31,
2003 and April 27, 2004 (as so amended and supplemented and as further amended
and supplemented from time to time prior to the date hereof, the "Deposit
Agreement"). 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 issuance of International Global Depositary Shares
("International GDSs") to be evidenced by one or more International GDRs
pursuant to Sections 2.02 and 2.03 of the Deposit Agreement.
2. We acknowledge (or if we are a broker-dealer, our customer has
confirmed to us that it acknowledges) that the International GDRs, the
International 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, or at the time the Shares are deposited and at the
time International GDSs are created in respect thereof will
be, the beneficial owner of such Shares and of such
International GDSs, and (i) we are not a U.S. person (as
defined in Regulation S), we are located outside the United
States (within the meaning of Regulation S under the
Securities Act) and we acquired, or have agreed to acquire and
will have acquired, the Shares to be deposited outside the
United States (within the meaning of Regulation S), (ii) we
are not an affiliate of the Issuer or a person acting on
behalf of such an affiliate, and (iii) we are not in the
business of buying and selling securities or, if we are in
such business, we did not acquire the securities to be
deposited from the Issuer or any affiliate thereof in the
initial distribution thereof.
OR
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(1) To be used prior to effectiveness of a registration statement on Form F-6
under the Securities Act of 1933 relating to depositary receipts to be
issued pursuant to the Deposit Agreement following such effectiveness.
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B. We are a broker-dealer acting on behalf of our customer; our
customer has confirmed to us that it is, or at the time the
Shares are deposited and at the time International GDSs are
created in respect thereof will be, the beneficial owner of
such Shares and International GDSs, and (i) it is not a U.S.
person (as defined in Regulation S), it is located outside the
United States (within the meaning of Regulation S under the
Securities Act) and it acquired, or has agreed to acquire and
will have acquired, the Shares to be deposited outside the
United States (within the meaning of Regulation S), (ii) it is
not an affiliate of the Issuer or a person acting on behalf of
such an affiliate, and (iii) it is not in the business of
buying and selling securities or, if it is in such business,
it did not acquire the securities to be deposited from the
Issuer or any affiliate thereof in the initial distribution
thereof.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By:
Title:
Dated:
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