AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of May 23, 2003 (the "Amendment"),
to the Deposit Agreement dated as of March 12, 2001 (as so amended hereby, the
"Deposit Agreement"), among Yukos Oil Company, incorporated under the laws of
the Russian Federation (the "Company"), Deutsche Bank Trust Company Americas, as
depositary (the "Depositary"), and all holders from time to time of American
depositary receipts ("Receipts") issued thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit Agreement for
the purposes set forth therein; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company and
the Depositary desire to amend the terms of the Deposit Agreement and Receipts.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement to
the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Deposit Agreement, dated as of March 12, 2001 as further
amended by this Amendment.
SECTION 2.02. Section 1.3 of the Deposit Agreement is amended by replacing
"fifteen" with "four".
ARTICLE III
AMENDMENTS TO THE FORM OF RECEIPT
SECTION 3.01. The face of the form of Face of Receipt is amended by
replacing "fifteen" with "four".
SECTION 3.02. The first paragraph of the form of Face of Receipt is amended
by replacing "fifteen" with "four".
SECTION 3.03. The form of Receipt shall be in the form set forth as Exhibit
A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly
and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder in
the Russian Federation, neither of such agreements need to be filed or
recorded with any court or other authority in the Russian Federation, nor
does any stamp or similar tax or governmental charge need to be paid in the
Russian Federation on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of May 23, 2003. (the "Effective Date").
SECTION 5.02. Outstanding Receipts. Receipts issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of Receipt
effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
YUKOS OIL COMPANY
By:
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
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Name:
Title:
By:
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Name:
Title:
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EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT
IT IS EXPECTED THAT THE SHARES DEPOSITED HEREUNDER WILL BE REGISTERED
ON THE SHARE REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR OF YUKOS CORP.
IN THE NAME OF DEUTSCHE BANK TRUST COMPANY AMERICAS OR ITS NOMINEE OR OF THE
CUSTODIAN OR ITS NOMINEE. HOLDERS AND BENEFICIAL OWNERS SHOULD BE AWARE,
HOWEVER, THAT RUSSIA'S SYSTEM OF SHARE REGISTRATION AND CUSTODY CREATES RISKS OF
LOSS THAT ARE NOT NORMALLY ASSOCIATED WITH INVESTMENTS IN OTHER SECURITIES
MARKETS. THE DEPOSITARY WILL NOT BE LIABLE FOR THE UNAVAILABILITY OF SHARES OR
FOR THE FAILURE TO MAKE ANY DISTRIBUTION OF CASH OR PROPERTY WITH RESPECT
THERETO AS A RESULT OF SUCH UNAVAILABILITY.
THE DEPOSITARY HAS BEEN ADVISED BY RUSSIAN COUNSEL THAT COURTS IN THE
RUSSIAN FEDERATION WILL NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR XXX XXXXXX XX XXX XXXXX XX XXX
XXXX.
(Each American Depositary
Share represents four deposited Shares)
DEUTSCHE BANK TRUST COMPANY AMERICAS
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
REPRESENTING ORDINARY SHARES OF
YUKOS CORP.
(A corporation organized under the laws of the Russian Federation)
Deutsche Bank Trust Company Americas as depositary (hereinafter called the
"Depositary"), hereby certifies that ___________________, or registered assigns
IS THE HOLDER OF _______________________ AMERICAN DEPOSITARY SHARES representing
shares of Common Stock (herein called "Share(s)") of YUKOS Corp., a corporation
organized under the laws of the Russian Federation (herein called the
"Company"). At the date hereof, each American Depositary Share represents four
(4) Shares deposited or subject to deposit under the Deposit Agreement.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS LOCATED AT
00 XXXX XXXXXX, XXX XXXX, X.X. 00000
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1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the Deposit Agreement, dated as of March 12, 2001 (such Deposit Agreement as
amended from time to time, the "Deposit Agreement"), by and among the Company,
the Depositary, and all Holders and Beneficial Owners from time to time of
Receipts representing American Depositary Share(s) (herein called "ADS(s)")
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Holders and Beneficial Owners of the Receipts
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 Depositary's Corporate Trust Office in New
York City and at the Moscow, Russian Federation Office of Deutsche Bank AG, as
custodian (the "Custodian").
The statements made on the face and reverse of this Receipt 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. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt
and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of the Deposit Agreement and the Charter of the Company,
and upon payment of related fees and charges of the Depositary as described in
Paragraph 7, the Holder hereof is entitled to delivery, to him or upon his
order, at the principal office of the Custodian of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by this Receipt. Delivery of such Deposited Securities may be made by (a)(i) the
delivery of certificates in the name of such Holder or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Holder or as ordered by him or (ii) other documents evidencing title
(including extracts from the Share Register) in the name of such Holder or as
ordered by such Holder, and (b) delivery of any other securities, property and
cash to which such Holder is then entitled in respect of such Receipts to such
Holder or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay, at the office of the Custodian. At the
request, risk and expense of the Holder, the Depositary may deliver Deposited
Securities (other than Shares) at the Corporate Trust Office. The Company shall
ensure that transfer and recordation of the Deposited Securities into the name
of the Holder or as directed by such Holder is effected within three (3)
Business Days of the Russian Share Registrar's receipt of such documentation as
may be required by applicable law and regulation and the reasonable and
customary internal regulations of the Russian Share Registrar, or as soon as
applicable thereafter.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by properly executed instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a
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written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon the Depositary shall direct the Custodian to
deliver at the principal office of such Custodian, subject to the terms of the
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or other cash distributions with respect to the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, or of
any proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. In the case of surrender of
a Receipt evidencing a number of American Depositary Shares representing other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be delivered in accordance with the terms
hereof, and shall issue and deliver to the person surrendering such Receipt a
new Receipt evidencing American Depositary Shares representing any remaining
fractional Share.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Holder, by cable, telex or facsimile transmission.
No surrender of Receipts for the purpose of withdrawal of Deposited
Securities shall be accepted unless accompanied by evidence satisfactory to the
Depositary that all necessary filings have been made and approvals have been
obtained (or in each case, have been properly waived) under the laws of the
Russian Federation.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS. Subject to the terms
and conditions of the Deposit Agreement, the transfer of this Receipt is
registrable on the books of the Depositary at its Corporate Trust Office by the
Holder hereof in person or by a duly authorized attorney, upon surrender of this
Receipt duly stamped (as may be required by law), properly endorsed for transfer
or accompanied by proper instruments of transfer and funds sufficient to pay any
applicable taxes or other governmental charges, and the fees and expenses of the
Depositary related to such registration of transfer as set forth in Paragraph 7
hereof and duly stamped as may be required by applicable law, and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. Upon satisfaction of the conditions described above, the
Depositary shall execute a new Receipt or Receipts and deliver the same to or
upon the order of the person entitled thereto. This Receipt may, upon the terms
and conditions of the Deposit Agreement, be split into other Receipts, or may be
combined with other Receipts into one Receipt, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered. As
a condition precedent to the execution and delivery, registration of transfer,
split-up, combination, or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presenter of the
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Receipt a sum sufficient to reimburse it for any tax (including, without
limitation, amounts in respect of any applicable transfer taxes) or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require proof of
compliance with any applicable notice, consent or other requirements relating to
the acquisition of securities of companies organized in the Russian Federation
and may also require compliance with any regulations the Depositary may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Paragraph 3.
The delivery of Receipts against the deposit of Shares generally or against
the deposit of particular Shares may be suspended, or the transfer of Receipts
in particular instances may be refused, or the registration of transfer of
outstanding Receipts or the combination or split-ups of Receipts generally may
be suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company in their reasonable discretion at any time or from time to time
because of any requirement of law or of any government or quasi-governmental
body or commission or any securities exchange or automated quotation system on
which the American Depositary Shares may be listed, or under any provision of
the Deposit Agreement or this Receipt, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding anything to the contrary
in the Deposit Agreement or this Receipt, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may be suspended, only as permitted in
General Instruction I.A. (1) to Form F-6 (as such instruction may be amended
from time to time) in connection with (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act, unless a registration statement is in effect as to such
Shares.
4. LIABILITY OF HOLDER OR BENEFICIAL OWNER FOR TAXES.
If any tax (including, without limitation, any transfer taxes) or other
governmental charge shall become payable with respect to this Receipt or any
Deposited Securities represented hereby, such tax or other governmental charge
shall be payable by the Holder or Beneficial Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer (or any combination or split-up) of
this Receipt or, subject to Paragraph 23 hereof, any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder and Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Holder or Beneficial Owner hereof shall remain
liable for any deficiency.
The Holder and Beneficial Owner (if any) hereof agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to
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hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
5. REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are duly authorized, validly issued, fully paid, non-assessable, legally
obtained by such person and free of any preemptive rights of the holders of
outstanding Shares and that the person making such deposit is duly authorized so
to do. Every such person shall also be deemed to represent that such Shares and
the Receipts evidencing American Depositary Shares representing such Shares are
(a) not Restricted Securities (as defined in the Deposit Agreement) and (b) not
subject to any unfulfilled requirements of the laws of the Russian Federation.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts. If any such representations or warranties are false in any
way, the Company and the Depositary shall be authorized, at the cost and expense
of the person depositing the Shares, and in their sole and absolute discretion,
to take any and all actions necessary to correct the consequences thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or Beneficial Owner
of a Receipt may be required from time to time (i) to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, payment of applicable taxes or other governmental charges, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or the Receipts, or such information relating to the registration on
the books of the Company or the Foreign Registrar, if applicable, or any other
information the Custodian, the Depositary, or the Company may deem necessary or
appropriate as evidence of compliance with all applicable laws and regulations,
and (ii) to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or appropriate. Any such person
shall be required to comply with requests by the Company for information as to
the capacity in which such person owns Receipts and Shares, the identity of any
other person interested in any such Receipt or Share, and the nature of such
interest. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or distribution of rights or
of the sale proceeds thereof or, subject to the terms of Paragraph 23 hereof,
the delivery of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such representations and
warranties made to the Depositary's reasonable satisfaction.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay or reimburse the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar in accordance
only with agreements in writing entered into between the Depositary and the
Company from time to time. The right of the Depositary to receive payments
reimbursements under this Paragraph 7 shall survive the termination of the
Deposit Agreement.
The following charges shall be incurred by the Holders and Beneficial
Owners, by any
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party depositing or withdrawing Shares or by any party surrendering Receipts or
to whom Receipts are issued (including, without limitation, issuance pursuant to
a stock dividend or stock split declared by the Company or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts
pursuant to Paragraph 12 hereof and to the terms of the Deposit Agreement),
whichever is applicable: (1) taxes (including, without limitation, any amounts
in respect of any applicable stamp tax and other governmental charges), (2) such
transfer or registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the register of the Company or
Foreign Registrar and applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Paragraph 14 hereof and to the terms of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to
Paragraph 14 hereof and to the terms of the Deposit Agreement and the surrender
of Receipts pursuant to Paragraphs 2, 12 and 21 hereof and the terms of the
Deposit Agreement, (6) a fee of $.02 or less per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, (7) a fee of $1.50 per certificate for a Receipt or Receipts for
transfers made pursuant to Paragraph 3, (8) a fee for the distribution of
securities pursuant to Paragraph 7 hereof and to the terms of the Deposit
Agreement, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause (8) treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Holders, and (9) a fee
of $0.01 or less per ADS (or portion thereof) per year to cover such expenses as
are incurred for inspections by the Depositary, the Custodian or their
respective agents of the Share Register maintained by the Russian Share
Registrar (which fee shall be assessed against Holders of record as of the date
set by the Depositary in accordance with Section 4.06 of the Deposit Agreement
not more often than once each calendar year).
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding anything to the contrary in this Receipt or in the Deposit
Agreement but subject to the terms and conditions thereof, the Depositary may
execute and deliver Receipts prior to the receipt of Shares (a "Pre-Release").
The Depositary may deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered, that such person, or its customer, owns the Shares
or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) Business
Days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Release will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it reasonably deems appropriate, and may change such
limit for purposes of general application. The Depositary will also set Dollar
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case-by-
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case basis as the Depositary reasonably deems appropriate. For purposes of
enabling the Depositary to fulfill its obligations to the Holders under the
Deposit Agreement, the collateral referred to in clause (b) above shall be held
by the Depositary as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Holder and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New York (subject to
satisfying the requirements of the Deposit Agreement); provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Holder
hereof as the absolute owner hereof for 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 for all other purposes. Neither the
Depositary nor the Company shall have obligation under the terms hereof or of
the Deposit Agreement to any Beneficial Owner or Holder of any Receipt issued
pursuant to the Deposit Agreement unless such person is registered as the Holder
thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary; provided, however, that if a
Registrar for the Receipts shall have been appointed this Receipt shall be
countersigned by the manual signature of a duly authorized officer of the
Registrar. Such signature of this Receipt by manual signature shall be
conclusive evidence, and the only evidence, that this Receipt has been duly
executed and delivered under the terms hereof, and of the Deposit Agreement.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company furnishes the Commission with certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Exchange Act. These reports and documents can be inspected and copied at public
reference facilities maintained by the Commission located at Judiciary Plaza,
000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Holders in the interest of a business or
object other than the business of the Company or a matter related to this
Deposit Agreement or the Receipts.
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12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall establish an ADS
Record Date pursuant to Paragraph 15 hereof and shall, subject to this Paragraph
12, convert such dividend or distribution into Dollars (if not paid in Dollars),
as promptly as practicable, and shall distribute the amount thus received (net
of the fees and expenses of the Depositary as provided in Paragraph 7 hereof and
any taxes or other governmental charges paid or payable in conjunction with such
conversion), as promptly as practicable, to the Holders as of the ADS Record
Date (as herein defined), in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them, respectively;
provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes, the amount distributed to the
Holder of the Receipts evidencing American Depositary Shares 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. Any such fractional amounts shall be
rounded down to the nearest whole cent and so distributed to Holders entitled
thereto, and any balance not so distributable shall be retained by the
Depositary (without liability for interest thereon) for inclusion with funds
received by the Depositary thereafter in respect of the Deposited Securities for
distribution to Holders of Receipts then outstanding. The Depositary or the
Company or their respective agents may (but shall not be obligated to) file any
reports necessary to obtain benefits under the applicable tax treaties for the
Holders of Receipts.
Subject to the terms of the Deposit Agreement, whenever the Depositary
shall receive any distribution other than a distribution in cash, Shares or
Rights under the terms of the Deposit Agreement the Depositary shall establish
an ADS Record Date pursuant to the terms of Paragraph 15 hereof, and shall cause
the securities or property received by it to be distributed as promptly as
practicable to the Holders as of the ADS Record Date, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
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 such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company 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 practicable, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the proceeds of
any such sale (net of the fees and expenses of the Depositary as provided in
Paragraph 7 hereof and any taxes or other governmental charges paid or payable
in conjunction with such sale or distribution) shall be distributed by the
Depositary to the Holders entitled thereto, all in the manner described above in
this Paragraph 12.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary shall establish an ADS
Record Date pursuant to the terms of
12
Paragraph 15 hereof, and may, and will if the Company so requests, distribute as
promptly as practicable to the Holders of outstanding Receipts as of the ADS
Record Date, in proportion to the number of American Depositary Shares held by
them respectively, additional Receipts evidencing an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement and of this Receipt with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in this
Paragraph 12 and the payment of the fees and expenses of the Depositary as
provided in Paragraph 7 hereof. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from the
Company that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of the
Securities Act. In lieu of delivering Receipts for fractional American
Depositary Shares the Depositary may, in its discretion, sell the amount of
Shares represented by the aggregate of such fractions, at public or private
sale, at such place or places and upon such terms as it may deem proper, and
distribute the net proceeds of any such sale as if such proceeds were a cash
distribution. If additional Receipts are not so distributed (except as pursuant
to the preceding sentence), each American Depositary Share shall thenceforth
also represent its proportionate interest in the additional Shares so
distributed upon such Deposited Securities.
13. RIGHTS.
In the event that the Company shall offer or cause 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, upon receipt of
timely notice thereof and after consultation with the Company, have discretion
as to the procedure to be followed in making such rights available to any
Holders or in disposing of such rights on behalf of any Holders and making the
net proceeds available to such Holders or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Holders or dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
reasonable discretion that it is lawful and practicable to make such rights
available to all or certain Holders but not to other Holders, the Depositary may
distribute to any Holder to whom it determines the distribution to be lawful and
practicable, in proportion to the number of American Depositary Shares held by
such Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed, if a
Holder of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the Shares evidenced by the American
Depositary Shares held by such Holder hereunder, the Depositary will make such
rights available to such Holder upon written notice from the Company to the
Depositary that the Company has elected in its sole discretion to permit such
rights to be exercised.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Holders, then upon instruction from any such Holder pursuant
to such warrants or other instruments to the Depositary to exercise such rights,
upon payment by such Holder to the Depositary for the account of such Holder of
an amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any
13
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Holder, exercise the rights and purchase the Shares,
and the Company shall cause the Shares so purchased to be delivered to the
Depositary on behalf of such Holder. As agent for such Holder, the Depositary
will cause the Shares so purchased to be deposited pursuant to the terms of the
Deposit Agreement, and shall, pursuant to the Deposit Agreement, execute and
deliver Receipts to such Holder.
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Holders, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Holders to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Paragraph 7 hereof and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such 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 Receipt or otherwise. Any such
proceeds shall be distributed in accordance with as would a cash distribution
under Paragraph 12 hereof.
The Depositary will not distribute rights to Holders unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to all
Holders or are registered under the provisions of such Act; provided, that
nothing in this Receipt or in the Deposit Agreement shall create, or be
construed to create, any obligation on the part of the Company or the Depositary
to file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If a Holder of Receipts requests the distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under such Act, the Depositary shall not effect such distribution unless it has
received an opinion acceptable to it from recognized counsel in the United
States for the Company upon which the Depositary may rely that such distribution
to such Holder is exempt from such registration.
Subject to Paragraph 18 hereof, the Depositary shall not be responsible for
any good faith failure to determine that it may be lawful or feasible to make
such rights available to Holders in general or any Holder in particular.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net 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 practicable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars and such
14
Dollars (net of any fees, expenses, taxes or other governmental charges incurred
in the process of such conversion) shall be distributed, as promptly as
practicable, 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 may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions, the date of delivery of any Receipt
or otherwise.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file as
promptly as practicable such application for approval or license, if any, as it
may deem necessary. Nothing herein shall obligate the Depositary to file or
cause to be filed, or to seek effectiveness of any such application or license.
If at any time the Depositary shall determine that in its reasonable
judgment any foreign currency received by the Depositary or the Custodian is not
convertible on a practicable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not readily obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
in its discretion, but subject to applicable laws and regulations, either (i)
distribute the foreign currency (or an appropriate document evidencing the right
to receive such foreign currency) received by the Depositary to the Holders
entitled to receive such foreign currency, or (ii) hold such foreign currency
uninvested and without liability for interest thereon 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 of the Holders entitled thereto, the
Depositary may in its discretion, but subject to applicable laws and
regulations, either (i) make such conversion and distribution in Dollars to the
extent permissible to the Holders entitled thereto and (ii) distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto.
15. 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 the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (the "ADS Record Date") as close as practicable to the
record date fixed by the Company with respect to the Shares (a) for the
determination of the Holders who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at any such meeting, (iii)
to act in respect of any other matter or (iv) responsible for the fee assessed
by the Depositary for inspection of the Share Register maintained by the Russian
Share Registrar, or (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to Paragraph 12 hereof and to
the provisions of the Deposit Agreement, the Holders at close of business in New
York on such ADS Record Date shall be
15
entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of timely notice of any meeting of holders of Shares or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall establish an ADS Record Date pursuant to
Paragraph 15 hereof and shall, as soon as practicable thereafter and if
requested in writing by the Company, mail to the Holders of Receipts a notice in
English, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting (or solicitation of consent or proxy) received by the
Depositary from the Company, (b) a statement that the Holders of Receipts as of
the ADS Record Date will be entitled, subject to any applicable provision of the
laws of the Russian Federation , the terms of the Deposit Agreement and of
Charter of the Company, to instruct the Depositary as to the exercise of the
voting rights (or right to consent to or to grant a proxy), if any, pertaining
to the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a statement as to the manner in
which such instructions may be given. Upon the written request of a Holder of a
Receipt as of such ADS Record Date, received on or before the date established
by the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt(s) in accordance with the instructions set forth in such request.
Neither the Depositary nor the Custodian shall, under any circumstances,
exercise any discretion as to voting, vote any Shares other than an integral
number thereof, or vote Shares in a manner that would be inconsistent with
applicable law. Shares evidenced by Receipts for which no specific voting
instructions have been received shall not be voted and shall not be registered
on the Shareholders meeting. Instructions in respect of any ADS shall be deemed
to have been received only if received in accordance with the terms of the
Deposit Agreement and of this Receipt. The Company agrees to provide timely
notice to the Depositary which will enable the timely notification of Holders as
to limitations on the ability of the Depositary to vote a particular ADS
according to the voting instructions received in regard to such ADS.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances other than a distribution in Shares, upon any change in
nominal value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall, to the extent permitted by applicable laws, be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall (to the extent permitted by law) thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, but shall not without first receiving from counsel of Company an
opinion, which shall be satisfactory to the Depositary, that such delivery would
not violate any applicable law or regulation, execute and deliver additional
16
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
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 of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any state thereof,
the Russian Federation, or any other country, or of any governmental or
regulatory authority, stock exchange or automated quotation system, or by reason
of any provision, present or future, of the Articles of Association of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or other circumstances beyond its control, the Depositary or the
Company shall be 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 the Deposit Agreement or Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, employees, agents or Affiliates incur any
liability to any Holder or Beneficial Owner of any Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of the Deposit Agreement it is provided shall or may be
done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Neither the Depositary nor the
Company shall incur any liability in the case that any or all holders of
Deposited Securities benefit from any distribution, offering, right or other
benefit which is not, under the terms of the Deposit Agreement, made available
to any or all Holder(s) or Beneficial Owners of American Depositary Shares
issued hereunder. Where, by the terms of a distribution pursuant to the terms of
the Deposit Agreement, or an offering or distribution pursuant to the terms of
the Deposit Agreement, or for any other reason, 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 shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
Neither the Depositary nor the Company shall be liable for any action or
nonaction 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 of a Receipt, or any other person believed by it in good faith
to be competent to give such advice or information provided, however, that in
the case of the Company, advice of or information from legal counsel is from
recognized U.S. counsel for U.S. legal issues, recognized Russian counsel for
Russian legal issues and recognized counsel of any other jurisdiction for legal
issues with respect to that jurisdiction. The Depositary shall not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any such vote is cast or the
effect of any such vote, provided that any such action or nonaction is in good
faith. The Depositary shall not be liable to the Company, any Holder or
Beneficial Owner or any other person for the unavailability of the Deposited
Securities or for the failure to make any distribution of Cash or Other
Distributions with respect thereto as a result of (a) any act or failure to act
of the Company or its agents, including the Russian Share Registrar, or its or
their respective directors, employees, agents or affiliates, (b) any provision
of any present or future law or regulation of the United States, the Russian
Federation or any other country, (c) any provision of any present or future
regulation of any governmental or regulatory authority or
17
stock exchange, (d) any provision of any present or future Charter of the
Company or any other instrument of the Company governing Deposited Securities,
(e) any provision of any securities issued or distributed by the Company, or any
offering or distribution thereof or (f) any act of God or war or other
circumstances beyond its control. The Depositary shall not be liable for any
acts or omissions made by a successor depositary whether in connection with a
previous act or omission of the Depositary or in connection with any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Company agrees to indemnify the Depositary, its
directors, employees, agents and Affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the reasonable fees and expenses of counsel, but excluding any form of tax,
fee, or other governmental charge upon any stock transfer or registration owed
by any party other than the Company which shall be reimbursed only as provided
in the penultimate sentence of this paragraph) which may arise out of any
registration with the Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or out of
acts performed or omitted, in accordance with the provisions of the Deposit
Agreement and of the Receipts, as the same may be amended, modified, or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and Affiliates, 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 directors, employees, agents and
Affiliates.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary at any time may resign as Depositary hereunder by written
notice of its election so to do delivered to the Company. The Depositary at any
time may be removed by the Company by written notice of such removal.
Notwithstanding anything to the contrary contained herein, in case at any time
the Depositary acting hereunder shall resign or be removed, it shall continue to
act as Depositary for the purpose of terminating this Deposit Agreement pursuant
to Section 6.02 of the Deposit Agreement and Paragraph 21 of this ADR. 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.
The Depositary may from time to time appoint one or more entities as
Custodian. The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Holders to do so, it may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
The Depositary shall notify the Company promptly after the appointment of
replacement or additional Custodian hereunder. Upon demand of the Depositary,
any Custodian shall deliver such of the Deposited Securities held by it as are
requested of it, and any rewards pertaining thereto, to any other Custodian or
such substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form
18
and substance to the Depositary.
20. AMENDMENT.
This Receipt and any provisions of the Deposit 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 without the
consent of the Holder or Beneficial Owner hereof. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of the Holder hereof shall, however, not become
effective as to this Receipt until the expiration of thirty days after notice of
such amendment shall have been given to the Holder hereof. The Holder and
Beneficial Owner hereof agree that any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order for
(a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Shares or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold this Receipt and the ADSs
represented thereby, to consent and agree to such amendment and to be bound by
this Receipt and by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder or Beneficial Owner of this Receipt
to surrender this Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require the amendment or
supplement of this Receipt or of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement this Receipt
and the Deposit Agreement at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement hereof or of the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
21. TERMINATION OF DEPOSIT AGREEMENT.
Upon the resignation or removal of the Depositary pursuant to Section 5.04
of these Deposit Agreement, the Depositary may, and shall at any time at the
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. On and after
the date of termination, the Holder of a Receipt will, upon (a) surrender of
such Receipt at the Corporate Trust Office of the Depositary, (b) payment of the
fee of the Depositary for the surrender of Receipts referred to in Paragraph 2,
and (c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under the terms of the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other
19
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
six months from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of Receipts which have not theretofore been surrendered,
such Holders thereupon becoming general creditors of the Depositary with respect
to such net proceeds. 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 (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for certain obligations to the
Depositary described therein.
22. DISCLOSURE OF INTERESTS; OWNERSHIP RESTRICTIONS.
Notwithstanding any other provision of the Deposit Agreement or of this
Receipt, the Charter of the Company or applicable law in the Russian Federation,
each Holder and Beneficial Owner agrees to (a) provide such information as the
Company may request pursuant to the laws in the Russian Federation, any
applicable law of the United States, the Articles of Association of the Company,
any resolutions of the Company's Board of Directors adopted pursuant to such
Articles of Association, the requirements of any markets or exchanges upon which
the ADSs or Receipts are listed or traded, or to any requirements of any
electronic book-entry system by which the ADSs or Receipts may be transferred,
and (b) be bound by and subject to applicable provisions of the laws of the
Russian Federation , the Articles of Association of the Company and the
requirements of any markets or exchanges upon which the ADSs, Receipts or Shares
are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly.
Failure by a Holder or Beneficial Owner to provide in a timely fashion the
information requested by the Company may, in the Company's sole discretion,
result in the withholding of certain rights in respect of such Holder or
Beneficial Owner's American Depositary Shares (including voting rights and
certain rights as to dividends in respect of the Shares represented by such
American Depositary Shares). The Depositary agrees to comply with any
instructions received from the Company requesting that the Depositary take the
actions specified therein to obtain such information.
In the event that the Company determines that there has been a failure to
comply with the applicable reporting requirements with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to the laws of the Russian Federation by a court of
competent jurisdiction or the Charter of the Company, the Company shall so
notify the Depositary, giving details thereof, and shall instruct the Depositary
in writing as to the application of
20
such sanctions to the Deposited Securities. The Depositary shall have no
liability for any actions taken in accordance with such instructions.
23. COMPLIANCE WITH U.S. LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Instruction I.A. (1) of the General Instructions to Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
24. AGENTS.
The Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify the
Company of such appointment. With respect to any and all losses, damages, costs,
judgments, expenses and other liabilities (including reasonable attorneys' fees
and expenses) (collectively referred to as "Losses") incurred by any Holder or
Beneficial Owner as a result of the acts or failure to act by such agent or
attorney (or, in the case of the Custodian, only such damages as are described
below), the Depositary, to the extent it shall receive indemnification and
security acceptable to it from such Holder or Beneficial Owner, may take
appropriate action to recover such Losses from such agent or attorney and, to
the extent is takes such action and recovers any amounts, as promptly as
practicable shall distribute any amounts so recovered (exclusive of costs and
expenses incurred by the Depositary in connection with recovering such Losses
which are not reimbursed by such agent or attorney, including, without
limitation, the Custodian) to the Holders and Beneficial Owners entitled
thereto; and the Depositary's sole responsibility and liability to such Holders
and Beneficial Owners shall be limited to amounts so received from such agent or
attorney (exclusive of costs and expenses incurred by the Depositary in
connection with recovering such Losses which are not reimbursed by such agent or
attorney, including, without limitation, the Custodian).
The liability of the Custodian is set forth in the Custody Agreement
between the Depositary and the Custodian (the "Custody Agreement"). Under the
terms of the Custodian Operating Agreement, the Custodian is only liable for its
breach of the Custody Agreement, its gross negligence, willful default or fraud
in connection with the performance of its obligations thereunder and for loss of
Shares or funds held in custody under the Custody Agreement. In each case, the
liability of the Custodian with respect to the loss of Shares or funds will be
limited to direct (but not indirect, including consequential) losses incurred by
Holders and Beneficial Owners.
Moreover, only the Depositary, acting on behalf of Holders and Beneficial
Owners, will be permitted to bring claims against the Custodian in respect of
such losses incurred by Holders and Beneficial Owners as a result of the acts
of, or the failure to act by, the Custodian. Any such claims by the Depositary
against the Custodian will be resolved exclusively by arbitration. The
Depositary agrees to promptly remit to Holders any amounts recovered from such
claims (exclusive of costs and expenses incurred by the Depositary in connection
with recovering such losses which are not reimbursed by the Custodian). The
Depositary shall have no other responsibility or liability to Holders or
Beneficial Owners with respect to the acts of, or the failure to act by, the
Custodian or for the unavailability of the Shares or the failure to make any
distribution of cash or property with respect thereto as a result of such
unavailability.
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The liability of the Custodian for such losses incurred by Holders and
Beneficial Owners, the obligation of the Depositary to bring claims against the
Custodian for such losses and the method by which such claims may be brought are
subject to the terms and conditions of the Custody Agreement, a copy of which is
available from the Depositary upon the written request of any Holder.
25. REGISTRATION OF SHARES; RUSSIAN SHARE REGISTRAR; SHARE REGISTER. (a) In
the Deposit Agreement the Company designated and appointed [M-Reestr JSC], in
the Russian Federation, as its Russian Share Registrar in respect of the Shares
and Deposited Securities. The Company further agreed to take any and all action,
including the filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment in full force and effect
for so long as any ADSs or ADRs remain outstanding hereunder or the Deposit
Agreement remains in force.
(b) In the Deposit Agreement, the Company agreed that it shall, at all
times:
(i) take any and all action necessary to assure the accuracy and
completeness of all information set forth in the Share Register
maintained by the Russian Share Registrar in respect of the Shares
or Deposited Securities;
(ii) provide or use its best efforts to cause the Russian Share Registrar
to provide to the Depositary, the Custodian or their respective
agents unrestricted access to the Share Registrar during ordinary
business hours in Moscow, the Russian Federation, in such manner and
upon such terms and conditions as the Depositary, in its reasonable
discretion, may deem appropriate, to permit the Depositary, the
Custodian or their respective agents to regularly (and in any event
not less than monthly) confirm the number of Deposited Securities
registered in the name of the Depositary, the Custodian or their
respective nominees, as applicable, pursuant to the terms of the
Deposit Agreement and, in connection therewith, to provide the
Depositary, the Custodian or their respective agents, upon request,
with a duplicate extract from the Share Register duly certified by
the Russian Share Registrar (or some other evidence of verification
which the Depositary, in its reasonable discretion, deems
sufficient);
(iii) use its best efforts to cause the Russian Share Registrar promptly
(and, in any event, within three Business Days of the Russian Share
Registrar's receipt of such documentation as may be required by
applicable law and regulation and the reasonable and customary
internal regulations of the Russian Share Registrar, or as soon as
practicable thereafter) to effect the re-registration of ownership
of Deposited Securities in the Share Registrar in connection with
any deposit or withdrawal of Shares or Deposited Securities under
this Deposit Agreement;
(iv) permit and use its best efforts to cause the Russian Share Registrar
to permit the Depositary or the Custodian to register any Shares or
other Deposited Securities held hereunder in the name of the
Depositary, the Custodian or their respective nominees (which may,
but need not be, a non-resident of the Russian Federation); and
use its best efforts to cause the Russian Share Registrar promptly
to notify the
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Depositary in writing at any time that the Russian Share Registrar (A)
eliminates the name of a shareholder of the Company from the Share Register or
otherwise alters a shareholder's interest in the Company's shares and such
shareholder alleges to the Company or the Russian Share Registrar or publicly
that such elimination or alteration is unlawful; (B) no longer will be able
materially to comply with, or has engaged in conduct that indicates it will not
materially comply with, the provisions of this Deposit Agreement relating to it
(including, without limitation, Section 7.10 of the Deposit Agreement); (C)
refuses to re-register shares of the Company in the name of a particular
purchaser and such purchaser (or its respective seller) alleges that such
refusal is unlawful; (D) holds Shares of the Company for its own account; or (E)
has materially breached the provisions of this Deposit Agreement relating to it
(including, without limitation, Section 7.10 of the Deposit Agreement) and has
failed to cure such breach within a reasonable time.
(c ) The Company agrees that it shall be solely liable for any act or
failure to act on the part of the Russian Share Registrar and that the Company
shall be solely liable for the unavailability of Deposited Securities or for the
failure of the Depositary to make any distribution of Cash or Other
Distributions (as hereinafter defined) with respect thereto as a result of (i)
any act or failure to act of the Company or its agents, including the Russian
Share Registrar, or their respective directors, employees, agents or affiliates,
(ii) any provision of any present or future Charter of the Company or any other
instrument of the Company governing the Deposited Securities, or (iii) any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof.
(d) The Depositary agrees for the benefit of Holders and Beneficial Owners
that the Depositary or the Custodian shall confirm regularly (and in any event
not less than monthly) the number of Deposited Securities registered in the name
of the Depositary, the Custodian or their respective nominees, as applicable,
pursuant to the terms of this Deposit Agreement. The Company and the Depositary
agree that, for the purposes of the rights and obligations under this Deposit
Agreement of the parties hereto, the records of the Depositary and the Custodian
shall be controlling for all purposes with respect to the number of Shares or
other Deposited Securities which should be registered in the name of the
Depositary, the Custodian or their respective nominees, as applicable, pursuant
to the terms of this Deposit Agreement. The Depositary agrees that it will
instruct the Custodian to maintain custody of all duplicate share extracts (or
other evidence of verification) provided to the Depositary, the Custodian or
their respective agents pursuant to Section 7.10(b). In the event of any
material discrepancy between the records of the Depositary or the Custodian and
the Share Register, then, if the Depositary has knowledge of such discrepancy,
the Depositary shall notify the Company promptly. In event of discrepancy
between the records of the Depositary or the Custodian and the Share Register,
the Company agrees that (whether or not it has received any notification from
the Depositary) it will (i) use its best efforts to cause the Russian Share
Registrar to reconcile its records to the records of the Depositary or the
Custodian and to make such corrections or revisions in the Share Register as may
be necessary in connection therewith, and (ii) to the extent the Company is
unable to so reconcile such records, and the number of Shares reflected in the
records of the Russian Share Registrar differs by more than one-half of one
percent from the number of Shares reflected in the records of the Depositary or
the Custodian, promptly instruct the Depositary to notify the Holders of the
existence of such discrepancy. Upon receipt of the Company's instruction to
notify the Holders of such discrepancy, the Depositary shall give such
notification promptly to the Holders pursuant to the notice provisions of the
Deposit Agreement (it being understood that the Depositary at any time may give
such notification to the Holders, whether or not it has received instructions
from the Company) and shall promptly cease issuing ADRs until such
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time as, in the opinion of the Depositary, such records have been appropriately
reconciled.
26. ARBITRATION; SETTLEMENT OF DISPUTES; WAIVER OF IMMUNITIES. (a) Any
controversy, claim or cause of action brought by any party hereto against the
Company arising out of or relating to the Shares or other Deposited Securities,
the ADSs, the ADRs or this Deposit Agreement, or the breach hereof or thereof,
shall be referred to, and finally resolved by, arbitration in accordance with
the Arbitration Rules of the London Court of International Arbitration (the LCIA
Rules) in effect on the date of this Agreement, which Rules are deemed
incorporated by reference into this paragraph. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof;
provided, that in the event of any third party litigation to which the
Depositary is a party and to which the Company may be properly be joined, the
Company may be so joined in any court in which such litigation is proceeding;
and provided further, that any such controversy, claim or cause of action
relating to or based upon the provisions of the federal securities laws of the
United States or the rules and regulations promulgated thereunder may, but need
not, be submitted to arbitration as provided in Section 7.11 of the Deposit
Agreement. The place of the arbitration shall be London, England, and the
language of the arbitration shall be English.
The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. If a dispute, controversy or cause of action shall involve more
than two parties, the parties shall attempt to align themselves in two sides
(i.e., claimant and respondent), each of which shall appoint one arbitrator as
if there were only two parties to such dispute, controversy or cause of action.
If such alignment and appointment shall have not occurred within twenty (20)
calendar days after the initiating party serves the arbitration demand, the
London Court of International Arbitration shall appoint the three arbitrators.
The parties and the London Court of International Arbitration may appoint from
among the nationals of any country, whether or not a party is a national of that
country, provided, however, that the chairman of the arbitral tribunal shall not
have the same nationality as the Company or the Depositary unless there is
express written agreement otherwise.
The arbitrators shall have no authority to award punitive or other damages
not measured by the prevailing party's actual damages and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of this Agreement.
(b) Any controversy, claim or cause of action rising out of or relating to
the Shares or other Deposited Securities, the ADSs, the ADRs or this Deposit
Agreement not subject to arbitration shall be litigated in the federal and state
courts in the Borough of Manhattan.
(c) The provisions of this paragraph (25) shall survive any termination of
the Deposit Agreement, in whole or in part.
(d) In the Deposit Agreement, the Company appointed CT Corporation System
(the "Agent"), presently having its office at 111 Eighth Avenue, 13th Floor, New
York, New York 10011, United States of America, as the Company's authorized
agent upon which process may be served in any suit or proceeding (including, but
not limited to, any arbitral proceeding as contemplated by Section 7.11 of the
Deposit Agreement) arising out of or relating to the Shares or Deposited
Securities, the ADSs, the ADRs or this Agreement, (ii) consents and submits to
the jurisdiction of
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any court in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such Agent of its appointment.
The Company further agrees to take any and all action, including the filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment in full force and effect for so long as any ADSs or
ADRs remain outstanding or this Agreement remains in force. In the event the
Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by established overnight
courier service, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed. The Company hereby irrevocably
designates, appoints and empowers the Agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court or arbitration as described in Article VII of the Deposit Agreement.
(e) To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
ADSs, the ADRs or this Deposit Agreement, the Company, to the fullest extent
permitted by law, has irrevocably and unconditionally waived, and, in the
Deposit Agreement agreed not to plead or claim, any such immunity and consents
to such relief and enforcement. Additionally, in the Deposit Agreement, the
Company irrevocably and unconditionally waived, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any arbitration or court as
provided in Section 7.11 of the Deposit Agreement, and thereby further
irrevocably and unconditionally waived and agreed not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
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