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(Frequently Asked Questions - Faqs On Idr) : The Idr Facility, Principal Participants and Key Documentation
(Frequently Asked Questions - Faqs On Idr) : The Idr Facility, Principal Participants and Key Documentation
DOCUMENTATION
Who are the principal participants in the IDR Facility and what are their
roles?
The principal participants in the IDR Facility are the Company, the Custodian, the
Depository and the Registrar. Under the IDR Facility, the Company deposits the
Deposited Shares with the Custodian who holds the Deposited Shares on behalf of the
Depository. The Company owes certain obligations to the Depository (and, under a Deed
Poll executed by the Company to the IDR Holders) in respect of the Deposited Property
under the Deposit Agreement. These obligations are described further throughout
this summary. Kindly note, a deed poll is a deed made and executed by a single
party.
The Depository is appointed by the Company pursuant to the Deposit Agreement. The
Depository will issue the IDRs representing the Deposited Shares to IDR Holders and
will hold the Deposited Property (and all rights, benefits and obligations attaching
thereto) as bare trustee under English law
for the IDR Holders. The Depository owes certain obligations to IDR Holders in respect
of the Deposited Property under the terms and conditions of the IDRs. These obligations
are described further throughout this summary.
The Custodian is appointed by the Depository pursuant to the Custody Agreement. The
Custodian will hold the Deposited Property on behalf of the Depository and will, upon
receipt of instructions from the Depository, take certain actions with respect to the
Deposited Property to enable IDR Holders to obtain the benefit of such Deposited
Property. The Registrar is appointed by the Company and the Depository under the
Registrar Agreement and the Transfer Agent Agreement to provide certain services to
the Depository in relation to the IDR Facility. In the event that the appointment of any
of the Depository, the Custodian or the Registrar is terminated or any of those entities
resigns from office, no such resignation or termination of appointment will be effective
until a successor entity has been appointed to act in the relevant capacity. IDR Holders
will be notified of any such changes.
(i) such Shares are issued as a dividend or free distribution on Deposited Shares;
(ii) such Shares are acquired by IDR Holders from the Company during a rights issue; or
(iii) such Shares are issued by the Company to the IDR Holders in respect of the
Deposited Shares as a result of any change in the par value, sub-division, consolidation
or other reclassification of Deposited Shares or upon any reorganisation, merger or
consolidation of the Company. However, such deposits of further shares would be
subject to certain limitations as further described herein.
Other shareholders of the Company cannot deposit shares in the IDR Facility.
Can IDR Holders withdraw the Deposited Shares represented by the IDRs
from the IDR Facility?
IDR Holders may only withdraw the Deposited Shares with the prior approval of the
RBI. In addition, under Indian law, there is an absolute prohibition on the withdrawal
of Deposited Shares for a period of one year following the date of the issue of the IDRs.
Each IDR Holder will have to individually approach the RBI for such approval at their
own expense. At present, there is no specified format for making such an application. An
IDR Holder will have to make a general application pursuant to the provisions of FEMA.
There can be no assurance that such approval will be granted by the RBI in a timely
manner or at all. Moreover, IDR Holders will not be able to withdraw fractions of
Shares. In addition, IDR Holders who are able to cancel their IDRs and become
shareholders of the Company may still be subject to certainlimitations not applicable
to other shareholders.
If an IDR Holder withdraws Deposited Shares having obtained the required approvals,
the IDR Holder will be required to provide a Withdrawal Order in the form annexed to
the Deposit Agreement (a copy of which can be obtained from the Registrar) to the
Depository, pay a fee of US$0.05 or less (exchanged into INR at prevailing exchange
rates) per Deposited Share evidenced by those IDRs to the Depository and have such
Shares registered in the IDR Holder’s name or that of a designated nominee. A
Withdrawal Order cannot be given in respect of a fraction of a Deposited Share.
Deposited Shares, once withdrawn, may be traded on the London Stock Exchange (or,
upon completion of certain procedures by an IDR Holder, on the Hong Kong Stock
Exchange). Following withdrawal of the Deposited Shares, IDR Holders would also have
to pay certain customary fees and charges in connection with the trading of such
withdrawn Shares on these stock exchanges, which would include brokerage
commissions and applicable stamp duties. Other persons resident in India including
resident individuals are allowed to hold the Deposited Shares only for the purpose of
sale within a period of 30 days from the date of conversion of IDRs.
The practical effect of the Company’s obligation in this regard is that, subject to certain
exceptions, whenever the Company and/or the Depository is unable to make
distributions available to the IDR Holders, the Depository will try and sell the Deposited
Property that is the subject of the distribution on behalf of the IDR Holders and
distribute the net proceeds thereof as a cash distribution to the IDR Holders. However,
there is no assurance as to the value, if any, that the Depository would receive upon the
sale of such Deposited Property. Subject to this general principle, the rights of IDR
Holders will be affected by certain operational practices of and the requirement to pay
certain fees to the Depository, as a result of participating in the IDR Facility, which
would not be applicable to other holders of Shares. The principal practical limitation is
the additional procedural step involved in communicating with IDR Holders which can
limit the ability of IDR Holders to exercise their rights and receive their entitlements in
respect of various corporate actions relating to the Company under the Conditions.
Holders of the Shares of the Company will receive notice directly from the Company and
will be able to submit their instructions in respect of any corporate action directly to the
Company or, if applicable, a third party. IDR Holders, in contrast, will receive the notice
in accordance with the Deposit Agreement. Pursuant to the Deposit Agreement the
Company will provide the notice to the Depository. The Depository shall as soon as
reasonably practicable forward to the IDR Holders notice of such event and, in any
event, no later than ten days before the date of the relevant meeting and/or the date of
acceptance of instructions in relation to the relevant corporate action. In order to
exercise their right to participate in a corporate action relating to the Company, IDR
Holders must provide their instruction in respect of the corporate event to the
Depository. Because of this additional procedural step, the process for the submission of
instructions may take longer for IDR
Holders than for holders of the Shares. Further, IDR Holders may not be able to receive
the documentation relating to the corporate event in time to enable them to return their
instructions to the Depository in a timely manner. IDRs for which the Depository does
not receive timely instructions will not be eligible to participate in the corporate event.
Will IDR Holders receive cash dividends and other cash distributions on
the Deposited Shares represented by the IDRs?
An IDR Holder will be entitled to dividends and other cash distributions in respect of
the Deposited Shares represented by their IDRs if the Company declares such a cash
dividend or cash distribution to be payable to holders of Shares (and the Depository
receives from the Company such cash dividend or other cash distribution) and the IDR
Holder is registered as an IDR Holder on the relevant record date set by the Depository.
Payments of cash dividends and other cash amounts in respect of IDRs represented by
Dematerialised IDRs will be made by the Depository through the Registrar. Any
dividend or other sum payable in cash in respect of the IDRs to IDR Holders, will be
paid by cheque, demand draft or pay order sent by post to the IDR Holder at his
registered address recorded in the Register maintained by the Registrar. Prior to
distribution, the Depository will make reasonable efforts to convert the amount received
into Indian Rupees. If it is impractical to effect such conversion, the Depository may
distribute the dividend in the relevant foreign currency to the extent permitted under
applicable law or hold such other currency for the benefit of IDR Holders entitled
thereto. The Depository is under no obligation to invest any currency that it cannot
convert and it will not be liable for any interest. If exchange rates fluctuate during a time
when the Depository cannot convert such cash distribution, IDR Holders may lose some
or all of the value of the distributions.
Will IDR Holders receive any dividends or other distributions on the
Deposited Shares represented by the IDRs that are not in the form of cash?
IDR Holders should be aware that there are certain limitations on the ability of the
Company to make available to IDR Holders through the Depository any dividends or
other distributions on the Deposited Shares that are not in the form of cash. This is
because of provisions of English law and the potential application of certain provisions
of Indian law. See the risk factor titled ‘‘Certain corporate actions of the Company may
entitle existing shareholders of the Company to receive further Shares from the
Company. However, the ability of IDR Holders to receive such further shares from the
Company (either in the form of Shares or IDRs representing the Shares) may be
restricted’’ in the section titled ‘‘Risk Factors’’ on page 69 of this Draft Red Herring
Prospectus for further information.
This would be particularly applicable if the Company were to undertake a rights issue or
a bonus issue of shares or offer holders of Shares the right to receive Shares instead of
all or part of a cash dividend (a scrip dividend alternative) and the IDR Holder were to
accept this option. In relation to a scrip dividend alternative, the Company would
normally send a circular to holders of Shares giving details of the terms of the relevant
election and how an election can be made, together with a form of election stating the
number of new Shares that a holder is entitled to receive instead of the cash dividend. If
the Company determines that it is permissible and practical for IDR Holders to
participate in any scrip dividend alternative, IDR Holders would receive the relevant
notice of election and be entitled to submit their election through the Depository Other
distributions If the Depository receives any distribution in securities (other than Shares)
or in other property (other than cash), the Depository will distribute such securities or
other property to the IDR Holders entitled thereto in a manner deemed equitable and
practicable by the Depository subject to applicable laws (which may involve the sale of
such securities or other property and the distribution of the sale proceeds as a cash
distribution to the IDR Holders entitled thereto).
What happens in the event that the Company undertakes a rights issue?
IDR Holders should be aware that there are certain limitations on the ability of the
Company to make a rights issue available to IDR Holders through the Depository
because of provisions of English law and the potential application of certain provisions
of Indian law.
In addition, making a rights issue available to IDR Holders could have timetable
implications that cannot be satisfactorily resolved and which may make it difficult for
the Company to undertake a rights issue simultaneously in the UK and in India. Whilst
the time period between the date of announcement and the date of allotment is 10
Business Days in a rights issue in the UK, the existing guidelines on rights issues in
India require that the rights issue be kept open for a substantially longer period. In light
of the existing differences in the timeline followed for a rights issue in the UK and in
India, it would be difficult for the Company to undertake the rights issue simultaneously
in the UK and in India. A rights issue to the same class of shareholder may not be able to
operate on two different time lines as this would give rise to trading and fungibility
issues as well as questions in the home market on equality of treatment of shareholders,
where shareholders in certain jurisdictions are given a longer time frame within which
to accept.
Given the limitations above, it is likely that, subject to certain conditions, the
Depository will exercise the option available under the Conditions to either sell such
rights and distribute the net proceeds of the IDR Holders entitled thereto or, in the
event that is not lawful or practicable, for the Depository to take such action, to permit
the rights to lapse and notify the IDR Holders of such decision.
If the Depository determines to take such steps as are necessary to implement the option
set out in
(i) above, IDR Holders who elect to take up such rights will be obliged to pay an amount
to the Depository representing (in Indian Rupees) an amount equal to the subscription
price for such rights plus any additional amount in respect of such subscription price to
ensure that the Depository (acting in good faith) will, after conversion of such Indian
Rupees into the currency by which subscriptions may be made, have sufficient funds to
satisfy the subscription price taking account of any possible fluctuations in rates of
foreign currency. Following conversion of this amount by the Depository to
the relevant foreign currency and payment of the subscription price in the relevant
foreign currency, the Depository will return any surplus subscription amounts (after
converting such amounts into Indian Rupees) to IDR Holders at the time of issue of the
additional IDRs representing the new
Deposited Shares or as a cash distribution.
Following receipt of such instructions from IDR Holders, the Depository will procure
that the Custodian shall appoint the relevant persons as proxies in respect of the
Deposited Shares as specified in the instruction provided by IDR Holders to the
Depository. The Depository will not vote or cause to be voted any Deposited. Shares
unless specifically instructed by an IDR Holder. If an IDR Holder does not so instruct
the Depository, the votes attaching to the Deposited Shares will be counted as an
abstention.
There are practical limitations upon the IDR Holders’ ability to exercise their voting
rights due to the additional procedural steps involved in communicating with IDR
Holders. Holders of the Shares will receive notice directly from the Company and will be
able to exercise their voting rights by either attending the meeting in person or voting by
power of attorney. IDR Holders, in contrast, will not receive notice directly from the
Company. Rather, in accordance with the Deposit Agreement, the Company will provide
the notice to the Depository. The Depository has undertaken, in turn, as soon as
practicable thereafter, to forward to the IDR Holders such notices, the voting
instructions, if and as received by the Depository from the Company, and a statement as
to the manner in which instructions may be given by IDR Holders. To exercise their
voting rights, IDR Holders must then
instruct the Depository how to vote the Shares evidenced by the IDRs they hold or
instruct the Depository to appoint a proxy. Because of this additional procedural step
involving the Depository, the process for the exercise of voting rights may take longer
for IDR Holders than for holders of the Shares. IDR Holders may not be able to receive
voting materials in time to enable them to return voting instructions to the Depository
in a timely manner, and IDRs for which the Depository does not receive timely voting
instructions will not be voted.
An IDR Holder should be aware that non-compliance with such notification obligations
could lead to it being subject to certain sanctions. Accordingly, each IDR Holder is
advised to actively monitor all communications received by it at the mailing address
recorded in the Register maintained by the Registrar for: (i) any information requests
received from the Company or the Depository pursuant to Condition 20.2 and Condition
20.3; and (ii) independently, its obligation to comply with the Disclosure and
Transparency Rules as set out in Condition 20.5.
In the case of a termination of the Deposit Agreement and consequent de-listing of the
IDRs for the reasons described under (i) and (ii) above, there are two alternative ways in
which value may be returned to IDR Holders: either (1) each IDR Holder may elect to
receive the relevant Deposited Property on payment of any sums payable by the
Depository to the Custodian and/or any other expenses incurred by the Depository in
connection with such withdrawal (the right to withdraw being subject to certain
limitations as described elsewhere in this section); or (2) the Depository will sell the
Shares attributable to the relevant IDRs and will deliver the net proceeds of any such
sale, together with any other Deposited Property then held by it under the Deposit
Agreement, pro rata to the relevant IDR Holders.
In the case of a sale of Shares under (2) above, the Shares will be sold at the prevailing
market rate on the London Stock Exchange and the cash distributed to that IDR Holder
within 15 Business Days of the completion of the sale of all of the relevant Deposited
Property. Neither the Depository, the
Company nor any of their respective agents will be responsible or liable for any loss or
damage (whether actual or alleged) arising from the terms of or timing of any sale. In
the case of a termination of the Deposit Agreement and consequent de-listing of the
IDRs for the reasons described under (iii) above, the IDR Holders will receive the Shares
and other Deposited Property relating to their IDRs on payment by the IDR Holders of
any sums payable by the Depository to the Custodian and/or any other expenses
incurred by the Depository in connection with such delivery. The mechanism for selling
the Shares described above will not be available if the Shares are delisted. In addition, it
will not be possible to deliver fractions of a Share; fractions will therefore be
disregarded. In all the above circumstances, the IDRs will be cancelled after Deposited
Property has been transferred to IDR Holders or, as applicable, sold as described above.