Procedures

DEED OF CONFIDENTIALITY UNDERTAKING

This DEED OF CONFIDENTIALITY UNDERTAKING ("Undertaking") is made on this __________ day of __________, 2003

BY:

_______, a company incorporated under the laws of the ________, with its registered office at ________ (the "Bidder");

IN FAVOUR OF:

(Promoting Agency) (a company incorporated under the Companies Act, 1956), as amended, with its registered office at ……………………………………………………… or (Government of Punjab)

and

(Company/PSU) , a company incorporated under (the Companies Act, 1956), as amended, with its registered office at………………(hereinafter referred to as "the Company") or (Government of Punjab) (hereinafter referred to as "the Government") ; and

(Global Advisor) , with its office at ……………………………………

RECITALS

  1. The Bidder, along with its existing Consortium Members (as defined below) if any, has submitted an Expression of Interest for participation in the proposed sale by (Promoting Agency) and the proposed purchase by the Bidder and/or the Consortium Members of (………%) of the paid-up equity share capital of the Company (such proposed transaction, the "Transaction") and has been shortlisted as a "Qualified Interested Party"; and
  2. In the context of the Bidder’s interest in the Transaction, the Disclosing Party (as defined below) may disclose Confidential Information (as defined below) to the Receiving Party (as defined below) to assist the Bidder to evaluate the Transaction.

NOW, THEREFORE, in consideration for receiving the Confidential Information, the Bidder hereby executes this Undertaking and undertakes, represents, warrants, covenants and agrees to the terms and conditions contained herein.

1. In this Undertaking (including the recitals):

"Advisors" means, (Name of Global Advisor).

"Confidential Information" means and includes any and all facts, knowledge and information of any nature whatsoever, whether written, oral, in electronic, magnetic and / or optical form or otherwise, concerning the business, operations, prospects, finances, or other affairs of the Company, its affiliates, associates or subsidiaries (which includes, without limitation, documents delivered in connection with a due diligence investigation, information concerning passengers, crew and ship cargo, ships and ship movements, product specifications, data, know-how, intellectual property, compositions, maps, mosaics, photographs, electro-magnetic tapes, drawings, memoranda, feasibility studies, project reports, commercial and such other agreements, notes, all interpretation of such data and other information pertaining to such data, designs, sketches, photographs, graphs, drawings, past, current, and planned research and development, current and planned marketing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, computer software and programs, database technologies, systems, structures and architectures, historical financial statements, business plans, financial projections and budgets, historical and projected sales, capital spending budgets and plans, current or prospective financing sources, the names and backgrounds of personnel, personnel training techniques and materials), information memorandum, request for proposal, shareholders agreement, share purchase agreement and guarantee agreement or other materials, including drafts thereof, furnished in connection with the Transaction, in whatsoever manner such information is documented, that has been or may hereafter be provided or shown to the Receiving Party by the Disclosing Party or is gathered, received or obtained directly or is otherwise obtained from review of the Disclosing Party’s documents or property or discussions with the Disclosing Party by the Receiving Party irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the Receiving Party containing or based, in whole or in part, on any information included in the foregoing.

Notwithstanding the foregoing, the following information will not constitute "Confidential Information" for purposes of this Undertaking:

(a) information which the Bidder can conclusively prove was already lawfully in the possession of the Receiving Party and was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party;

(b) information which is obtained by the Receiving Party from a third Person (other than (Promoting Agency), the Company or the Advisors or any other member of the Receiving Party) who, insofar as is known to the best knowledge of the Receiving Party, is not prohibited from disclosing the information to the Receiving Party under a contractual, legal or fiduciary obligation to the Disclosing Party; and

    1. information which is or becomes generally available to the public otherwise than as a result of a breach of this Undertaking by the Receiving Party.

The decision of (PROMOTING AGENCY) and/or the Company on whether any information qualifies within the exceptions in (a), (b) and (c) above shall be final, conclusive and binding.

"Confidentiality Undertaking" or "Undertaking" shall mean this Deed of Confidentiality Undertaking dated ________.

"Consortium" means the Bidder and all other Consortium Members acting in concert with the Bidder intending to directly or indirectly participate in the Transaction.

"Consortium Members" means the members of any existing Consortium, or future Consortium, formed by the Bidder for purposes of the Transaction and shall include any member at any time included in such Consortium.

"Definitive Agreements" means the share purchase agreement, guarantee agreement and any other agreement that may be entered into between the Bidder and / or the Consortium Members, as the case may be, and the (PROMOTING AGENCY) and / or the Company in the event that the Bidder and/or Consortium Members are selected as the purchaser of the (PROMOTING AGENCY) equity in the Company.

"Disclosing Party" means the Advisors, the Company, (PROMOTING AGENCY), other Governmental Authority and/or their respective Representatives, whether jointly or severally.

"Governmental Authority" means the Central Government, any State Government, any governmental or regulatory authority, government department in India, or other rule or regulation-making entity having jurisdiction on behalf of the Republic of India or any political subdivision thereof.

"Parties" means collectively, (PROMOTING AGENCY), the Company, (Global Advisor) and the Bidder and the expression "Party" means any one of them, as the context may require.

"Person" shall mean any individual, company, firm, association, trust, or any other organization or entity, including any governmental or political subdivision, ministry, department or agency thereof.

"Receiving Party" means the Bidder, Consortium Members and/or their respective Representatives, whether jointly or severally.

"Representative(s)" of any Person includes the directors, officers, employees, agents, consultants, advisors, or other representatives, including legal counsel, accounting and financial advisors of such Person and also includes the Representatives of the Representatives of any Person.

2. The Confidential Information divulged by the Disclosing Party to the Receiving Party, or acquired by the Receiving Party in the course of any studies conducted by the Receiving Party for the purpose of this Transaction , will be received and treated by the Receiving Party as strictly confidential and shall be subject to its obligations herein contained. The Receiving Party shall not, without the prior written consent of the (PROMOTING AGENCY) / the Company or as expressly permitted herein, disclose to any other Person, or use or allow others to disclose or use, the Confidential Information.

3. The Receiving Party will use the Confidential Information only to assist the Receiving Party in the evaluation of the Transaction and determine whether or not to proceed with the Transaction and the Receiving Party will not use the Confidential Information for any purpose other than the Transaction or in any manner whatsoever detrimental to the Disclosing Party and shall particularly ensure that the Disclosing Party's interests are not adversely affected in any manner whatsoever.

4. In consideration of the Disclosing Party providing the Receiving Party with Confidential Information, by the Bidder’s execution of this Undertaking, the Bidder, on behalf of the Receiving Party, agrees that all of the Confidential Information shall be held and treated by the Receiving Party in confidence. The Bidder agrees (A) to disclose Confidential Information only to Consortium Members and/or those of its Representatives and/or those Representatives of its Consortium Members who need to know the Confidential Information for the purposes of an evaluation of the Transaction and each such Consortium Member or Representative of the Bidder or Representative of Consortium Member shall be informed and advised by the Bidder of the confidential nature of such information and the obligations of this Undertaking and (B) that, the Bidder shall ensure that each such Consortium Member or Representative of the Bidder or Representative of Consortium Member shall hold and treat the Confidential Information in confidence and act in accordance with this Undertaking. The Bidder agrees that the Confidential Information shall not, without the prior written consent of (PROMOTING AGENCY) and / or the Company, be disclosed by the Bidder or each such Consortium Member or Representative of the Bidder or Representative of Consortium Member, in any manner whatsoever, in whole or in part, to any third Person, and shall not be used by the Bidder or each such Consortium Member or Representative of the Bidder or Representative of Consortium Member other than in connection with the evaluation of the Transaction.

The Bidder recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the resultant damage to the Company and (PROMOTING AGENCY) if the Confidential Information is disclosed or allowed to be disclosed to an unauthorized party or used for any purpose other than evaluating the Transaction. The Bidder acknowledges and agrees that it is imperative that all Confidential Information remains confidential.

The Bidder, before disclosing any of the Confidential Information to any Consortium Member(s), shall ensure that such Consortium Member(s), has already executed and furnished to the Advisors, a written undertaking identical in form and content as this Confidentiality Undertaking in favour of (PROMOTING AGENCY), the Company and the Advisors. The Bidder, before disclosing any of the Confidential Information to any of its Representative(s) and/or Representatives of the Consortium Members, as the case may be, shall ensure that its Representative(s) / Representatives of the Consortium Members, as the case may be, have read and understood this Undertaking and have agreed in writing to be bound by the terms and conditions contained herein.. The Bidder shall ensure that in case of a new Consortium Member, a written undertaking identical in form and content as this Confidentiality Undertaking, shall be executed and furnished to the Advisors within 7 days of the date of it becoming a Consortium Member.

The Bidder shall procure and furnish to the Advisors from each of its Representatives, a written confidentiality agreement or undertaking in the same form as this Undertaking with confidentiality and other obligations no less restrictive than those contained herein, and such Representative of the Bidder or Representative of Consortium Member shall undertake to treat the Confidential Information in accordance with the terms of this Undertaking.

Notwithstanding any agreement or undertaking, the Bidder agrees that it shall continue to be responsible and liable for any breach of this Undertaking even though the same is caused by any act or omission of any Consortium Member and/or Representative of the Bidder and/or Representative of Consortium Member and shall indemnify and hold the Advisors, (PROMOTING AGENCY) and the Company harmless (including in accordance with clause 7 and clause 18 set forth below) from any breach of this Undertaking or consequences and claims arising therefrom. In case of a Consortium, the Bidder agrees that for the purpose of this Confidentiality Undertaking, the liability of the Bidder(s) shall be joint and several with each of its Consortium Members.

5. Except as permitted by clause 4 and clause 8 and except with the prior written consent of (PROMOTING AGENCY) and / or the Advisors, and except as expressly permitted by the Definitive Agreements, if any, the Receiving Party will not disclose to any Person (including another prospective purchaser who has been provided Confidential Information) the fact that the Confidential Information has been made available to the Receiving Party or that the Receiving Party has inspected any portion of the Confidential Information.

6. Except as permitted by clause 4 and clause 8 and except with the prior written consent of (PROMOTING AGENCY) and / or the Advisors, and except as expressly permitted by Definitive Agreements, if any, the Receiving Party will not disclose to any Person the fact that any discussions or negotiations are taking place concerning the Transaction, including the details and / or the status of such discussions or negotiations from time to time.

7. On acquiring the Confidential Information on the terms stated in this Undertaking or otherwise, the Receiving Party shall comply with all applicable laws including laws relating to insider trading, and the Bidder shall indemnify and hold the Advisors, (PROMOTING AGENCY) and the Company harmless (including in accordance with clause 4 and clause 18 set forth herein) against any consequences arising from any violation by the Receiving Party of such applicable laws.

8. If the Receiving Party is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar process) or is required by a regulatory body to make any disclosure that is prohibited or otherwise constrained by this Undertaking, the Receiving Party will provide the Advisors, (PROMOTING AGENCY) and the Company with prompt written notice of such request so that the Advisors, (PROMOTING AGENCY) or the Company may seek an appropriate protective order or other appropriate remedy. Subject to the foregoing, the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that, in the written opinion of the Bidder’s counsel, reasonably acceptable to the Advisors, (PROMOTING AGENCY) and the Company, the Bidder is legally compelled or is otherwise required to disclose or else stand liable for contempt or suffer other material censure or material penalty; provided, however, that before making such disclosure, the Receiving Party shall, wherever possible, obtain prior approval of (PROMOTING AGENCY) and / or the Company; provided further that the Receiving Party must use all efforts to obtain reasonably reliable assurance that confidential treatment will be accorded to any Confidential Information so disclosed.

9. The confidentiality obligations contained in this Undertaking may be amended, modified or superceded upon the Bidder executing a definitive purchase agreement for the acquisition of shares of the Company from (PROMOTING AGENCY), but shall be without prejudice to any of the Advisors’, (PROMOTING AGENCY) or the Company’s rights in respect of any breach of this Undertaking which may have occurred prior to such amendment, modification or supercession.

10. In case the Bidder or any Consortium Member decides not to proceed with the Transaction or if the Advisors or (PROMOTING AGENCY) notifies the Bidder or any Consortium Member that (PROMOTING AGENCY) does not wish the Bidder or any such Consortium Member to consider the Transaction any further, the terms of this Undertaking shall survive the date of receipt of notification of such decision by the relevant party.

11. The Bidder agrees that (PROMOTING AGENCY) reserves the right, in its sole discretion to modify the process of the Transaction in any part, or to vary any terms at any time without prior notice to the Bidder, to reject any or all proposals made by the Bidder with regard to the Transaction. (PROMOTING AGENCY) may elect at any time to terminate further access by the Receiving Party to any Confidential Information required by the Bidder in connection with its evaluation of the Transaction.

12. The Bidder agrees that after termination of access of the Receiving Party by (PROMOTING AGENCY) as specified in Clause 11 above, or after the decision to not proceed with the Transaction as specified in Clause 10 above, (i) the Bidder (a) will promptly deliver to the concerned Disclosing Party, all documents or other materials furnished by such Disclosing Party to the Receiving Party including those constituting Confidential Information, together with all copies and summaries thereof in the possession or under the control of the Receiving Party, and (b) will destroy materials generated by the Receiving Party that include or refer to any part of the Confidential Information, without retaining a copy of any such material or (ii) alternatively, if and only if the Advisors, (PROMOTING AGENCY) or the Company so request in writing or give prior written consent to the Bidder’s request, the Bidder shall destroy all documents or other matters constituting Confidential Information in the possession or under the control of the Receiving Party. Any such destruction pursuant to the foregoing must be confirmed by the Bidder in writing to each of the Advisors, (PROMOTING AGENCY) and the Company (such confirmation must include a list of the destroyed materials). The Bidder acknowledges that the return of the Confidential Information and / or destruction of the Confidential Information shall not release the Receiving Party from its obligations under this Undertaking to keep such information confidential.

Notwithstanding the foregoing, the Representatives shall not be required to deliver up to Disclosing Party or destroy or expunge copies of any analyses, compilations, studies or meeting notes or any other documents that are subject to client-attorney / advisors privilege governing such Representatives but any such retained information / material shall be kept confidential subject to the terms hereof by the Representatives and details of all such information/ material retained by the Representatives shall be promptly provided to the Disclosing Party.

Notwithstanding anything contained in this Clause, in the event that the Receiving Party is required to maintain any records or copies by any law or regulation of the jurisdiction to which such Receiving Party is subject to, such Receiving Party may retain copies of the Disclosed Information and in such event, the Receiving Party shall continue to be bound by the terms of this Agreement. However, if the Receiving Party maintains or retains any records, it shall promptly inform the Disclosing Party setting out full details concerning the applicable law under which it is required to retain such records along with the list of such retained records.

13. The Receiving Party shall not deal (except in the ordinary course of the business) with any officer, director or employee of (PROMOTING AGENCY) or the Company regarding the business, operations, prospects or finances of the Company, without the Advisors’ express written consent. It is understood that the Advisors will arrange at an appropriate stage of the Transaction for appropriate contacts to the Receiving Party for due diligence purposes in connection with the Transaction. Unless otherwise agreed to by the Advisors in writing (i) all communications regarding any possible transaction, (ii) any requests for additional information, (iii) any requests for management meetings, and (iv) any queries regarding the Transaction, will be directed exclusively to the Advisors. However, if the Receiving Party is called upon by (PROMOTING AGENCY) and/or the Company for some discussion, the Receiving Party will do so or meet (PROMOTING AGENCY) and/or the Company only after duly informing the Advisors in writing.

14. (PROMOTING AGENCY) reserves the right, in its sole discretion, to reject any and all proposals made by the Receiving Party with regard to the Transaction and to terminate discussions and negotiations with the Receiving Party at any time. Without limiting the preceding sentence, nothing in this Undertaking (i) requires either the Bidder or (PROMOTING AGENCY) to enter into the Transaction or to negotiate such transaction for any specified period of time or (ii) requires the Advisors, (PROMOTING AGENCY) or the Company to enter into an agreement or an understanding, or prohibits the Advisors, (PROMOTING AGENCY) or the Company from entering into any agreement or understanding, for proceeding with the Transaction with any other Person.

15. For a period of 1 (one) year from the date of this Undertaking or till the completion of the Transaction, whichever is later, the Receiving Party shall not, directly or indirectly, solicit for employment or hire any employee of the Company.

16. The Receiving Party agrees that from the date of this Undertaking till the completion of the Transaction or as the case may be, till the time the Bidder and/or Consortium Members decide not to proceed with the Transaction, whether pursuant to Clauses 10 or 11 or 14, whichever is earlier, the Receiving Party shall not, directly or indirectly, buy, sell, negotiate, or enter into any arrangements for the purchase and / or sale of any of the shares of the Company, or advise any other person directly or indirectly to buy, sell, negotiate or enter into any arrangements for purchase and / or sell any of the shares of the Company, or take any action that may affect the price of the shares of the Company on any stock exchange or elsewhere or which may affect the existing shareholding structure of the Company.

17. The Bidder understands, acknowledges and agrees that (PROMOTING AGENCY), the Advisors and the Company retain the right to determine, in their sole discretion, the information that they wish to make available to the Receiving Party and the personnel through whom the same will be made available. Further, nothing in this Undertaking shall amount to or be construed as the Disclosing Party making any representations or warranties, express or implied, as to the accuracy and / or completeness of the Confidential Information and the Disclosing Party shall have no liability whatsoever to the Receiving Party resulting from the Bidder’s use of the Confidential Information. The Bidder also agrees that if it determines to proceed with the Transaction, its determination will be based solely on the terms of the Definitive Agreements and on its own investigation, analysis, and assessment of its investment. Moreover, unless and until such Definitive Agreements, if any, are entered into, neither (PROMOTING AGENCY) nor the Bidder will be under any legal obligation of any kind with respect to the Transaction except for the matters specifically agreed to in this Undertaking or in another written and duly executed agreement.

18. The Bidder agrees to indemnify and hold each of the Advisors, (PROMOTING AGENCY) and the Company harmless from any direct, indirect and consequential damage, loss, cost, or liability (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized use or disclosure by the Receiving Party of the Confidential Information or other violation of this Undertaking. In addition, because an award of money damages (whether pursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Undertaking by the Receiving Party and any such breach would cause the Disclosing Party irreparable harm, the Bidder also agrees that, in the event of any breach or threatened breach of this Undertaking, the Advisors, (PROMOTING AGENCY) or the Company will also be entitled, to equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Undertaking but will be in addition to all other remedies as may be available at law or in equity to the Advisors, (PROMOTING AGENCY) or the Company.

19. The Bidder agrees that no failure or delay by the Advisors / (PROMOTING AGENCY) / the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereto.

20. The Bidder understands, acknowledges and agrees that each of the (PROMOTING AGENCY), the Company and the Advisors are beneficiaries under this Undertaking. The Bidder further agrees that each of the (PROMOTING AGENCY), the Company and the Advisors, will be entitled to enforce, either individually or jointly, the obligations imposed on the Receiving Party under this Undertaking.

21. The terms of this Undertaking may be varied only with (PROMOTING AGENCY)’s prior written agreement. This Undertaking shall be effective as of the date first above given on the first page of this Undertaking.

22. This Undertaking shall be governed by and construed in accordance with the substantive laws of India without giving effect to its conflict of law principles.

23. All notices required or permitted to be given hereunder shall be in writing and shall be valid and sufficient if dispatched by registered airmail, postage prepaid, or by telex, cable or facsimile as follows:

If the notice is to (PROMOTING AGENCY):

(Address of Promoting Agency)

with a copy to:

(Address of Company/PSU)

If the notice is to the Advisors:

(Address of Global Advisors)

with a copy to:

(Address of Promoting Agency)

and

(Address of Company/PSU)

If the notice is to the Company:

(Address of Company/PSU)

with a copy to:

(Address of Promoting Agency)

and

(Address of Global Advisor)

If the notice is to the Bidder:

_______

_______

_______

Any of the Bidder, (PROMOTING AGENCY), the Company or the Advisors may change its address by a notice given to the other in the manner set forth above. All notices and other communications shall be deemed to have been duly given (i) on the expiry of seven days after posting, if transmitted by registered airmail or (ii) on the date immediately after the date of transmission with confirmed answer back if transmitted by telex, cable or facsimile; whichever shall first occur.

IN WITNESS WHEREOF, this Undertaking has been executed by the duly authorized representative of the Bidder on the date and year first hereinabove written.

Witnessed by: _____________ (Bidder)

Name: By:

Address: Name: