OPEN JOINT STOCK COMPANY
marganetsky ORE MINING AND PROCESSING ENTERPRISE
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of [________]
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS.........................................................1
1.1 American Depositary Shares.....................................1
1.2 Beneficial Owner...............................................1
1.3 Commission.....................................................2
1.4 Company........................................................2
1.5 Corporate Documents............................................2
1.6 Custodial Register.............................................2
1.7 Custodial Register Excerpt.....................................2
1.8 Custodian......................................................2
1.9 Deposit Agreement..............................................2
1.10 Depositary; Corporate Trust Office.............................2
1.11 Deposited Securities...........................................2
1.12 Depositing Shareholder.........................................3
1.13 Dollars........................................................3
1.14 Hryvnia........................................................3
1.15 Owner..........................................................3
1.16 Receipts.......................................................3
1.17 Registrar......................................................3
1.18 Restricted Securities..........................................3
1.19 Securities Act of 1933.........................................3
1.20 Shares.........................................................3
1.21 Share Registrar................................................4
1.22 Share Register.................................................4
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS........................4
2.1 Form and Transferability of Receipts...........................4
2.2 Deposit of Shares..............................................5
2.3 Execution and Delivery of Receipts.............................6
2.4 Transfer of Receipts; Combination and Split-up of Receipts.....6
2.5 Surrender of Receipts and Withdrawal of Shares.................7
2.6 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts..........................................8
2.7 Lost Receipts, etc.............................................9
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TABLE OF CONTENTS
(continued)
Clause Page
2.8 Cancellation and Destruction of Surrendered Receipts...........9
2.9 Pre-Release of Receipts........................................9
3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.....9
3.1 Filing Proofs, Certificates and Other Information..............9
3.2 Liability of Owner or Beneficial Owner for Taxes..............10
3.3 Warranties on Deposit of Shares...............................10
3.4 Disclosure of Interests.......................................10
4. THE DEPOSITED SECURITIES...........................................11
4.1 Cash Distributions............................................11
4.2 Distributions Other Than Cash, Shares or Rights...............11
4.3 Distributions in Shares.......................................12
4.4 Rights........................................................12
4.5 Conversion of Foreign Currency................................13
4.6 Fixing of Record Date.........................................14
4.7 Voting of Deposited Securities................................14
4.8 Changes Affecting Deposited Securities........................15
4.9 Reports.......................................................15
4.10 Lists of Owners...............................................16
4.11 Withholding...................................................16
5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.....................16
5.1 Maintenance of Office and Transfer Books by the Depositary....16
5.2 Prevention or Delay in Performance by the Depositary or
the Company...................................................17
5.3 Obligations of the Depositary, the Custodian and the
Company.......................................................17
5.4 Resignation and Removal of the Depositary.....................19
5.5 The Custodians................................................19
5.6 Notices and Reports...........................................20
5.7 Distribution of Additional Shares, Rights, etc................20
5.8 Indemnification...............................................20
5.9 Charges of Depositary.........................................21
5.10 Retention of Depositary Documents.............................22
5.11 Exclusivity...................................................22
5.12 List of Restricted Securities Owners..........................22
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TABLE OF CONTENTS
(continued)
Clause Page
5.13 Registration of Shares; Share Registrar; Share Register.......22
6. AMENDMENT AND TERMINATION..........................................23
6.1 Amendment.....................................................23
6.2 Termination...................................................23
7. MISCELLANEOUS......................................................24
7.1 Counterparts..................................................24
7.2 No Third Party Beneficiaries..................................24
7.3 Severability..................................................24
7.4 Owners and Beneficial Owners as Parties; Binding Effect.......24
7.5 Notices.......................................................24
7.6 Arbitration; Settlement of Disputes...........................25
7.7 Submission to Jurisdiction; Appointment of Agent for
Service of Process............................................26
7.8 Waiver of Immunities..........................................26
7.9 Governing Law.................................................26
7.10 Prohibition of Assignment.....................................26
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DEPOSIT AGREEMENT dated as of [_______]
AMONG
(1) OPEN JOINT STOCK COMPANY MARGANETSKY ORE MINING AND PROCESSING ENTERPRISE,
incorporated under the laws of Ukraine (herein called the "Company"), and
(2) THE BANK OF NEW YORK, a New York banking corporation (herein called the
"Depositary"), and all Owners and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
WHEREAS
(A) The Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth
in this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares;
and
(B) The American Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises, it is agreed by and between
the parties hereto as follows:
1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
1.1 American Depositary Shares
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by
the Receipts issued hereunder. Each American Depositary Share shall
represent the number of Shares specified in Exhibit A annexed hereto,
until there shall occur a distribution upon Deposited Securities covered
by Section 4.3 or a change in Deposited Securities covered by Section 4.8
with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of
Shares or Deposited Securities specified in such Sections.
1.2 Beneficial Owner
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced
by any Receipt.
1.3 Commission
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United
States.
1.4 Company
The term "Company" shall mean OPEN JOINT STOCK COMPANY MARGANETSKY ORE
MINING AND PROCESSING ENTERPRISE, incorporated under the laws of Ukraine,
and its successors.
1.5 Corporate Documents
The term "Corporate Documents" shall mean the Charter of the Company.
1.6 Custodial Register
The term "Custodial Register" shall mean the custodial registration system
maintained by the Custodian.
1.7 Custodial Register Excerpt
The term "Custodial Register Excerpt" shall mean an excerpt from the
Custodial Register evidencing rights of ownership in Deposited Securities
under Ukrainian law.
1.8 Custodian
The term "Custodian" shall mean the Kyiv office of ING Bank Ukraine, as
agent of the Depositary for the purposes of this Deposit Agreement, and
any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.5, as substitute or
additional custodian or custodians hereunder, as the context shall
require, and shall also mean all of them collectively.
1.9 Deposit Agreement
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
1.10 Depositary; Corporate Trust Office
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall
mean the office of the Depositary which at the date of this Agreement is
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1.11 Deposited Securities
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary
or the Custodian in respect thereof and at such time held hereunder,
subject as to cash to the provisions of Section 4.5.
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1.12 Depositing Shareholder
The term "Depositing Shareholder" shall mean the person holding ownership
rights in any Deposited Securities under Ukrainian law who deposits or
causes to be deposited such Deposited Securities with the Custodian in
accordance with Section 2.2 of this Deposit Agreement.
1.13 Dollars
The term "Dollars" shall mean United States dollars.
1.14 Hryvnia
The term "Hryvnia" shall mean the lawful currency of Ukraine.
1.15 Owner
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
1.16 Receipts
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
1.17 Registrar
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein
provided.
1.18 Restricted Securities
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from
the Company or its affiliates (as defined in Rule 144 to the Securities
Act of 1933) in a transaction not involving a public offering, or which
are held by an officer, director (or persons performing similar functions)
or other affiliate of the Company, or which would require registration
under the Securities Act in connection with the offer and sale thereof in
the United States, or which are subject to other restrictions on sale or
deposit under the laws of the United States or Ukraine, or under a
shareholder agreement or the Corporate Documents of the Company.
1.19 Securities Act of 1933
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
1.20 Shares
The term "Shares" shall mean ordinary shares in registered form of the
Company, par value 0.25 Hryvnia each, heretofore validly issued and
outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding Shares or hereafter validly issued
and
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outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding Shares or interim certificates
representing such Shares.
1.21 Share Registrar
The term "Share Registrar" shall mean the entity that presently carries
out the duties of registrar for the shareholders or any successor as
registrar for the shareholders. Initially, the Share Registrar shall be
Closed Joint Stock Company Commercial Bank PrivatBank
1.22 Share Register
The term "Share Register" shall mean the shareholder register maintained
by the Share Registrar in which ownership of the Shares owned by
shareholders resident in Ukraine is registered.
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS
2.1 Form and Transferability of Receipts
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed
by the Depositary by the manual signature of a duly authorized signatory
of the Depositary; provided, however, that such signature may be a
facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly
authorized officer of the Registrar. The Depositary shall maintain books
on which each Receipt so executed and delivered as hereinafter provided
and the transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized signatory
of the Depositary who was at any time a proper signatory of the Depositary
shall bind the Depositary, notwithstanding that such signatory has ceased
to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of
such Receipts.
Each Receipt shall bear the following legend:
IT IS EXPECTED THAT, IN ACCORDANCE WITH APPLICABLE UKRAINIAN
SECURITIES REGULATIONS, OWNERSHIP RIGHTS TO SHARES DEPOSITED
HEREUNDER WILL BE REGISTERED IN THE NAME OF THE DEPOSITARY OR ITS
NOMINEE ON THE CUSTODIAL REGISTRATION SYSTEM OF A DULY LICENSED
CUSTODIAN APPOINTED BY THE DEPOSITARY; AND THAT THE CUSTODIAN WILL
BE REGISTERED AS NOMINAL HOLDER OF SUCH SHARES IN THE SHARE REGISTER
MAINTAINED BY THE SHARE REGISTRAR FOR OPEN JOINT STOCK COMPANY
MARGANETSKY ORE MINING AND PROCESSING ENTERPRISE ORE MINING AND
PROCESSING ENTERPRISE.
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.
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THE DEPOSITARY HAS BEEN ADVISED BY UKRAINIAN COUNSEL THAT COURTS IN
UKRAINE MAY NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN NEW YORK
COURTS.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications
not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law
or regulations thereunder or with the rules and regulations of any
securities exchange upon which American Depositary Shares may be listed or
to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities
or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary,
may treat the Owner thereof as the absolute owner thereof for the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
2.2 Deposit of Shares
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof
to any Custodian hereunder in accordance with applicable Ukrainian law
relating to the transfer and recordation of ownership rights in
securities. As of the date hereof, Shares or evidence of rights to receive
Shares may be deposited by delivery thereof by the Depositing Shareholder,
accompanied by any appropriate instrument or instruments of transfer
(which may consist of all such transfer authorizations and other documents
as are required by applicable Ukrainian law to, as applicable, (a) validly
register such Shares to the account of the Custodian, as nominal holder
for the Depositary, on the Share Register (which may include, without
limitation, extracts from the Share Register) and (b) validly register
ownership rights in such Shares in the Custodial Register in the name of
the Depositary or its nominee (which may include, without limitation,
Custodial Register Excerpts)), together with all such certifications as
may be required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement, and, if the Depositary requires,
together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in
such order, a Receipt or Receipts for the number of American Depositary
Shares representing such deposit. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that (i) all
conditions to such deposit have been satisfied by the Depositing
Shareholder under Ukrainian laws and regulations, (ii) any necessary
approval has been granted by any governmental body in Ukraine which is
then performing the function of the regulation of currency exchange and
(iii) all applicable taxes and governmental charges and the fees and
expenses of the Depositary, as provided in Section 5.9 hereof, have been
paid. If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Company, the Share
Registrar or the Custodian, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer
to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the
Shares are or have been recorded may thereafter receive
5
upon or in respect of such deposited Shares, or in lieu thereof, such
agreement of indemnity or other agreement as shall be satisfactory to the
Depositary.
At the request, risk and expense of any Depositing Shareholder, and for
the account of such person, the Depositary may receive certificates for
Shares to be deposited, if any, together with the other instruments herein
specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for or
other documents evidencing or providing for the transfer of title to
Shares to be deposited hereunder (including, without limitation, extracts
from the Share Register or Custodial Register Excerpts, as applicable,
evidencing ownership of the Shares by a Depositing Shareholder), together
with the other documents above specified, such Custodian shall, as soon as
transfer and recordation can be accomplished, (i) present such certificate
or certificates or other evidence of title to the Company or the Share
Registrar, as applicable, for transfer and recordation of the Shares being
deposited to the account of such Custodian, as nominal holder for the
Depositary, or its nominee (and the Company shall ensure that such
transfer and recordation is promptly effected) and (ii) if applicable,
update the Custodial Register to register such Shares in the name of the
Depositary or its nominee.
Deposited Securities shall be held by the Custodian for the account and to
the order of the Depositary or at such other place or places as the
Depositary shall determine.
2.3 Execution and Delivery of Receipts
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company or the
Share Registrar that any Deposited Securities have been recorded upon the
books of the Company or the Share Registrar in the account of the
Custodian, as nominal holder for the Depositary, or its nominee), together
with the other documents required as above specified, such Custodian shall
notify the Depositary of such deposit and the person or persons to whom or
upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or
upon the receipt of Shares by the Depositary, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person
or persons entitled thereto, a Receipt or Receipts, registered in the name
or names, and evidencing any authorized number of American Depositary
Shares, requested by such person or persons, but only upon payment to the
Depositary of the fees and expenses of the Depositary for the execution
and delivery of such Receipt or Receipts as provided in Section 5.9, and
of all taxes and governmental charges and fees payable in connection with
such deposit and the transfer of the Deposited Securities.
2.4 Transfer of Receipts; Combination and Split-up of Receipts
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from
time to time, upon any surrender of a Receipt, by the Owner in person or
by a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws
of the State of
6
New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon
the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts,
execute and deliver a new Receipt or Receipts for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number
of American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the purpose
of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out
its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Owners or
persons entitled to Receipts and will be entitled to protection and
indemnity to the same extent as the Depositary.
2.5 Surrender of Receipts and Withdrawal of Shares
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt,
accompanied by such documents as the Depositary may require and upon
payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.9 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 this Deposit
Agreement, the Owner of such Receipt shall be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities at the time
represented by the American Depositary Shares evidenced by such Receipt.
Delivery of such Deposited Securities may be made by the delivery of (a)
certificates or other documents evidencing title (including, without
limitation, as applicable, extracts from the Share Register or Custodial
Register Excerpts) in the name of such Owner or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and, if the Depositary so requires, the Owner thereof
shall execute and deliver to the Depositary a 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 (i)
cause the transfer, recordation and issuance of appropriate evidence
thereof by the Share Registrar on the Share Register of the Shares being
withdrawn in the name of such Owner or as directed by him (and the Company
shall ensure that such transfer and recordation is effected within 72
hours of the Share Registrar's receipt of such documentation as may be
required by applicable law and the reasonable and customary regulations of
the Share Registrar or as soon thereafter as practicable) and (ii) if
applicable, record the transfer of the Shares being withdrawn in the name
of such Owner or as directed by him in the Custodial Register. Upon such
transfer and recordation, the Custodian shall deliver at the Kyiv,
Ukraine, office of such Custodian, subject to Sections 2.6, 3.1 and 3.2
and to the other terms and conditions of this Deposit Agreement, to or
upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, documents evidencing title
(including, without limitation, extracts from the Share Register or
Custodial Register Excerpts, as applicable) for the amount of Deposited
Securities represented by the
7
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 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.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, 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
Owner, by cable, telex or facsimile transmission.
2.6 Limitations on Execution and Delivery, Transfer and Surrender of Receipts
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, Custodian or Registrar may
require payment from the depositor of Shares or the presenter of the
Receipt of a sum sufficient to reimburse it for any tax 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
and expenses as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Depositary may
establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.6.
The delivery of Receipts against deposit of Shares generally or against
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 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 at any time
or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of
this Deposit Agreement, or for any other reason, subject to the provisions
of the following sentence. Notwithstanding anything to the contrary in
this Deposit Agreement, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended subject only to
(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
this Deposit Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933, unless a registration statement
is in effect as to such Shares.
The Depositary may from time to time limit the number of Shares which may
be deposited hereunder to facilitate compliance with the rules and
regulations as in effect from time to time of the Anti-Monopoly Committee
of Ukraine.
8
2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation
thereof, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt. Before the Depositary shall execute and deliver a new
Receipt in substitution for a destroyed, lost or stolen Receipt, the Owner
thereof shall have (a) filed with the Depositary (i) a request for such
execution and delivery before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser and (ii) a sufficient indemnity
bond and (b) satisfied any other reasonable requirements imposed by the
Depositary.
2.8 Cancellation and Destruction of Surrendered Receipts
All Receipts surrendered to the Depositary shall be canceled by the
Depositary. The Depositary is authorized to destroy Receipts so canceled.
2.9 Pre-Release of Receipts
Notwithstanding Section 2.3 hereof, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.5, 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 deems
appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
3.1 Filing Proofs, Certificates and Other Information
Any Depositing Shareholder or any Owner or Beneficial Owner of a Receipt
may be required from time to time to (i) file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control
approval, evidence of payment of applicable taxes and other governmental
charges or such information relating to the registration on the books of
the Company, the Share Registrar or the Custodian, (ii) execute such
certificates and (iii) make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of
any dividend or sale or distribution of rights or of the proceeds thereof
or the delivery of any Deposited Securities until such proof, evidence or
other information is filed or such certificates are executed or such
representations and warranties made.
9
3.2 Liability of Owner or Beneficial Owner for Taxes
The Depositary shall not be liable to the Company, any Owner or Beneficial
Owner, or any other person for any tax or other governmental charge that
is or may become payable in connection with the deposit or withdrawal of
any Deposited Securities or the offer, sale, pledge or other transfer of
Deposited Securities or the American Depositary Shares represented
thereby. If any tax or other governmental charge shall become payable by
the Custodian or the Depositary with respect to any Receipt or any
Deposited Securities represented by any Receipt, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner of
such Receipt to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or 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 Owner or Beneficial
Owner thereof any part or all of the Deposited Securities represented by
the American Depositary Shares evidenced by such 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 Owner or
Beneficial Owner of such Receipt shall remain liable for any deficiency.
3.3 Warranties on Deposit of Shares
Every Depositing Shareholder shall be deemed by depositing Shares under
this Deposit Agreement to represent and warrant that the Depositing
Shareholder is transferring good and valid title to such Shares under
Ukrainian law and that such Shares and each certificate therefor are
validly issued, fully paid, nonassessable and free of any preemptive
rights of the holders of outstanding Shares and that the Depositing
Shareholder 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 would not be Restricted
Securities. Such representations and warranties shall survive the deposit
of Shares and issuance of Receipts.
3.4 Disclosure of Interests
The Company or the Depositary may from time to time request Owners to
provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or
previously having a beneficial interest in such Receipts and the nature of
such interest and various other matters. Each Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this
Section 3.4. The Depositary agrees to comply with reasonable written
instructions received from time to time from the Company requesting that
the Depositary forward any such requests to the Owners and to forward to
the Company any such responses to such requests received by the
Depositary. To the extent that provisions of applicable law or the
Company's Corporate Documents governing any Deposited Securities
(including, without limitation, the Company's Charter) may require the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking
transfer and voting or other rights to enforce such disclosure or limit
such ownership, the Depositary shall use its best efforts that are
reasonable under the circumstances to comply with the Company's
instructions as to Receipts in respect of any such enforcement or
limitation, and Owners and Beneficial Owners shall comply with all such
disclosure requirements and ownership limitations and shall cooperate with
the Depositary's compliance with such instructions of the Company.
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4. THE DEPOSITED SECURITIES
4.1 Cash Distributions
Whenever the Depositary or the Custodian shall receive any cash dividend
or other cash distribution on any Deposited Securities, the Depositary
shall, subject to the provisions of Section 4.5, convert or cause to be
converted such dividend or distribution into Dollars and shall distribute
the amount thus received (net of the fees and expenses of the Depositary
as provided in Section 5.9 and applicable taxes and other governmental
charges) to the Owners entitled thereto, 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,
the Depositary or the Custodian 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 Owner 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 Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled
thereto.
Under applicable Ukrainian law, payments of cash or other distributions in
respect of the Deposited Securities under this Deposit Agreement may be
subject to significant taxation, some of which may be recoverable by the
Depositary or its agents acting for the benefit of Owners and Beneficial
Owners under applicable double-taxation treaties. Notwithstanding anything
in this Deposit Agreement to the contrary, before making any distribution
or other payment on any Deposited Securities, the Depositary may make or
cause to be made such deductions (if any) as by the laws of Ukraine the
Depositary is required to make in respect of any income, capital gains or
other taxes and the Depositary may also deduct the amount of any tax or
governmental charges payable by the Depositary or for which the Depositary
might be made liable in respect of such distribution or other payment or
any document signed in connection therewith. In making such deductions,
the Depositary shall have no obligation to any Owner or Beneficial Owner
to apply a rate under any treaty or other arrangement between Ukraine and
the country within which the Owner or Beneficial Owner is resident, nor
shall the Depositary have any obligation to take any action to recover any
amounts withheld or deducted under any applicable double-taxation treaty.
4.2 Distributions Other Than Cash, Shares or Rights
Subject to the provisions of Sections 4.11 and 5.9, whenever the
Depositary shall receive any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4, the Depositary shall cause the
securities or property received by it to be distributed to the Owners
entitled thereto, 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 Owners 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 of 1933 in order to be
distributed to Owners or Beneficial Owners) the Depositary deems such
distribution not to be feasible, 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 net
proceeds
11
of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.9 and applicable taxes and other governmental
charges) shall be distributed by the Depositary to the Owners entitled
thereto, all in the manner and subject to the conditions described in
Section 4.1.
4.3 Distributions in Shares
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may distribute to the
Owners of outstanding Receipts entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited
Securities 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 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 and the payment of the fees and expenses of the Depositary as
provided in Section 5.9. 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 such
Act. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in
Section 4.1. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
4.4 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 have
discretion as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any
Owners and making the net proceeds available to such Owners 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 Owners or dispose of such
rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to
whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts or the Company requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the
American Depositary Shares of such Owner or certain Owners hereunder, the
Depositary will make such rights available to such Owner or Owners upon
written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and
(b) such Owner or Owners have executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable
law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such
Owner to exercise such rights, upon payment by such Owner to the
12
Depositary for the account of such Owner 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 other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, 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 Owner. As agent for
such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall,
pursuant to Section 2.3 of this Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the
second paragraph of this section, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to appropriate
restrictions on sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may
sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined
it may not lawfully or feasibly make such rights available, and allocate
the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.9 and all taxes and governmental
charges payable in connection with such rights and subject to the terms
and conditions of this Deposit Agreement) for the account of such Owners
otherwise entitled to such rights, warrants or other instruments, all in
the manner and subject to the conditions described in Section 4.1.
Except as otherwise provided in the second paragraph of this Section 4.4,
the Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a
distribution to all Owners or are registered under the provisions of such
Act; provided, that nothing in this Deposit Agreement shall create any
obligation on the part of the Company 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 an Owner of
Receipts or the Company 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 from recognized counsel in the United States
for the Company, which may be Xxxxx & XxXxxxxx, including its London
office (as long as partners admitted to practice in the United States are
resident there), upon which the Depositary may rely that such distribution
to the Owner or Owners to which it is to be made is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
4.5 Conversion of Foreign Currency
Whenever the Depositary or the Custodian shall receive Hryvnia or another
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 Hryvnia or other foreign currency so
received can in the judgment of the Depositary be converted on a
reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by
sale or in any other manner that it may determine, such foreign currency
into Dollars, and such Dollars shall be distributed to the Owners 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
13
regard to any distinctions among Owners on account of exchange
restrictions, the date of delivery of any Receipt or otherwise and shall
be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file,
or cause the Custodian to file, such application for approval or license,
if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable 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 obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency
uninvested and without liability for interest thereon for the respective
accounts of, the Owners 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 Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
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 Owners entitled thereto.
4.6 Fixing of Record Date
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever 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 (a) for
the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof
or (ii) entitled to give instructions for the exercise of voting rights at
any such meeting,(b) on or after which each American Depositary Share will
represent the changed number of Shares or (c) for the determination of the
Owners who shall be obligated to pay any charges pursuant to clause (7) of
Section 5.9. Subject to the provisions of Sections 4.1 through 4.5 and to
the other terms and conditions of this Deposit Agreement, the Owners on
such record date shall be 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.
4.7 Voting of Deposited Securities
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, 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 received by the
14
Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to
any applicable provision of Ukrainian law and of the Corporate Documents
of the Company, to instruct the Depositary as to the exercise of the
voting rights, 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, including an express indication that such instructions may be
given or deemed given in accordance with the last sentence of this
paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the
written request of an Owner on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far 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 in accordance with the
instructions set forth in such request. The Depositary shall not vote or
attempt to exercise the right to vote that attaches to the Shares or other
Deposited Securities, other than in accordance with such instructions, or
deemed instructions. If no instructions are received by the Depositary
from any Owner with respect to any of the Deposited Securities represented
by the American Depositary Shares evidenced by such Owner's Receipts on or
before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give
a discretionary proxy to a person designated by the Company with respect
to such Deposited Securities and the Depositary shall give a discretionary
proxy to a person designated by the Company to vote such Deposited
Securities, provided, that no such instruction shall be deemed given and
no such discretionary proxy shall be given with respect to any matter as
to which the Company informs the Depositary (and the Company agrees to
provide such information as promptly as practicable in writing) that (x)
the Company does not wish such proxy given, (y) substantial opposition
exists or (z) such matter materially and adversely affects the rights of
holders of Shares.
4.8 Changes Affecting Deposited Securities
In circumstances where the provisions of Section 4.3 do not apply, 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 be treated
as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares shall 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 execute and deliver additional 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.
4.9 Reports
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the
Company. The Depositary shall also send to the Owners copies of such
reports when furnished by the Company pursuant to Section 5.6. Any such
reports and communications, including any such proxy soliciting material,
furnished to the Depositary by the Company shall be furnished in English,
to
15
the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
4.10 Lists of Owners
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
4.11 Withholding
In connection with any distribution to the Depositary on behalf of Owners,
the Company shall remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld by the Company and
owing to such authority or agency by the Company; and the Depositary and
the Custodian shall remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld and owing to such
authority or agency by the Depositary or the Custodian. The Depositary
will forward to the Company or its agent such information from its records
as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, and the Depositary
or the Company or their respective agents may file any such reports
necessary to obtain benefits under the applicable tax treaties for the
Depositary on behalf of Owners of Receipts. In the event that the
Depositary determines that any distribution in property (including Shares
and rights to subscribe therefor) or any deposit of Shares, transfer of
Receipts or withdrawal of Deposited Securities hereunder is subject to any
tax or other governmental charge which the Depositary is obligated to
withhold, the Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes or charges and the Depositary
shall distribute the net proceeds of any such sale after deduction of such
taxes or charges to the Owners entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
5.1 Maintenance of Office and Transfer Books by the Depositary
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New
York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
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 Owners, provided that such
inspection shall not be for the purpose of communicating with Owners 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.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of
its duties hereunder.
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If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars
for registry of such Receipts in accordance with any requirements of such
exchange or exchanges.
5.2 Prevention or Delay in Performance by the Depositary or the Company
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to
any Owner or Beneficial Owner of any Receipt, if by reason of (i) any
provision of any present or future law or regulation of the United States,
Ukraine or any other country or jurisdiction, (ii) any provision of any
present or future regulation of any governmental or regulatory authority
or stock exchange or (iii) 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
this Deposit Agreement or Deposited Securities it is provided shall be
done or performed; nor shall the Depositary or the Company nor any of
their respective directors, employees, agents or affiliates incur any
liability to any Owner 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 this 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 this Deposit
Agreement.
Neither the Depositary nor any of its directors, employees, agents or
affiliates shall incur any liability to any Owner or Beneficial Owner of
any Receipt, if by reason of (i) any act or failure to act of the Company
or its agents, including the Share Registrar, or their respective
directors, employees, agents or affiliates, (ii) any provision, present or
future, of the Corporate Documents 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, the Depositary 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 this
Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary nor any of its directors, employees,
agents or affiliates incur any liability to any Owner 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
this Deposit Agreement it is provided shall or may be done or performed.
Where, by the terms of a distribution pursuant to Section 4.1, 4.2, or 4.3
of this Deposit Agreement, or an offering or distribution pursuant to
Section 4.4 of this Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the
Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow
any rights, if applicable, to lapse.
5.3 Obligations of the Depositary, the Custodian and the Company
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that
it agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith except as provided in
Section 5.13.
17
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or
worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without
negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as
often as may be required, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility
of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give
such advice or information.
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 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 Owner or Beneficial Owner or any other person
for the unavailability of Deposited Securities or for the failure to make
any distribution of cash or property with respect thereto as a result of
(i) any act or failure to act of the Company or its agents, including the
Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision of any present or future law or regulation
of the United States, Ukraine or any other country or jurisdiction, (iii)
any provision of any present or future regulation of any governmental or
regulatory authority or stock exchange, (iv) any provision of any present
or future Corporate Documents or any other instrument of the Company
governing the Deposited Securities, (v) any provision of any securities
issued or distributed by the Company, or any offering or distribution
thereof, or (vi) any act of God or war or other circumstance beyond its
control.
The Company shall not be liable to the Depositary, any Owner or Beneficial
Owner or any other person for the unavailability of Deposited Securities
or for the failure to make any distribution of cash or property with
respect thereto as a result of (i) any provision of any present or future
law or regulation of the United States, Ukraine or any other country or
jurisdiction, (ii) any provision of any present or future regulation of
any governmental or regulatory authority or stock exchange or (iii) any
act of God or war or other circumstance beyond its control.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
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5.4 Resignation and Removal of the Depositary
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation
to take effect upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days prior
written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary
shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon
such successor depositary, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums
due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Deposited Securities to such successor,
and shall deliver to such successor a list of the Owners of all
outstanding Receipts. Any such successor depositary shall promptly mail
notice of its appointment to the Owners.
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.
5.5 The Custodians
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, each of which shall thereafter be a Custodian
hereunder. Whenever the Depositary in its discretion determines that it is
in the best interest of the Owners to do so, it may appoint a substitute
or additional custodian or custodians, each of which shall thereafter be
one of the Custodians hereunder. Upon demand of the Depositary, any
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it 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 and substance to the
Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the
appointment of such successor depositary shall in no way impair the
authority of each Custodian hereunder; but the successor depositary so
appointed shall, nevertheless, on the written request of any Custodian,
execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority as
agent hereunder of such successor depositary.
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5.6 Notices and Reports
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of
the taking of any action in respect of any cash or other distributions or
the offering of any rights, the Company agrees to transmit to the
Depositary and the Custodian a copy of the notice thereof in the form
given or to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary
and the Custodian of such notices and any other reports and communications
which are made generally available by the Company to holders of its
Shares. If requested in writing by the Company, the Depositary will
arrange for the mailing, at the Company's expense, of copies of such
notices, reports and communications to all Owners. The Company will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order
for the Depositary to effect such mailings.
5.7 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities
(each a "Distribution"), the Company will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which may
be Xxxxx & XxXxxxxx, including its London office (as long as partners
admitted to practice in the United States are resident there), which
counsel shall be satisfactory to the Depositary, stating whether or not
the Distribution requires a Registration Statement under the Securities
Act of 1933 to be in effect prior to making such Distribution available to
Owners entitled thereto. If in the opinion of such counsel a Registration
Statement is required, such counsel shall furnish to the Depositary a
written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the
Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate,
unless a Registration Statement is in effect as to such Shares under the
Securities Act of 1933.
5.8 Indemnification
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 fees and expenses of counsel) which may arise out of (a) any
registration with the Commission of Receipts, American Depositary Shares
or Deposited Securities or the offer or sale thereof in the United States,
(b) acts performed or omitted, in accordance with the provisions of this
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 or (c) the
unavailability of Deposited Securities or the failure to make any
distribution of cash or property with respect thereto as a result of
20
(i) any act or failure to act of the Company or its agents, including the
Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision of any present or future Corporate
Documents or any other instrument of the Company governing Deposited
Securities or (iii) any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof.
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense
which may arise out of acts performed or omitted by the Depositary or its
Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
5.9 Charges of Depositary
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance
with agreements in writing entered into between the Depositary and the
Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any 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 Section 4.3), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from
time to time be in effect for the registration of transfers of Shares
generally on the Share Register of the Company and applicable to transfers
of Shares to or from 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 this Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant
to Section 4.5, (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 Section 2.3, 4.3 or 4.4 and the surrender of Receipts pursuant
to Section 2.5 or 6.2, (6) a fee of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement, including, but not limited to Sections 4.1 through 4.4
hereof, (7) a fee for the distribution of securities pursuant to Section
4.2, 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 7 treating all such securities as if they were Shares) but
which securities are instead distributed by the Depositary to Owners, (8)
a fee of $.02 or less per American Depositary Share (or portion
thereof)for depositary services, which will accrue on the last day of each
calendar year and which will be payable as provided in clause (9) below;
provided, however, that no fee will be assessed under this clause (8) to
the extent a fee of $.02 was charged pursuant to clause (6) above during
that calendar year and (9) any other charge payable by the Depositary, any
of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.6 and
shall be payable at the sole discretion of the Depositary by billing such
Owners for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
21
5.10 Retention of Depositary Documents
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless
the Company requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
5.11 Exclusivity
The Company agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
5.12 List of Restricted Securities Owners
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall
update that list on a regular basis. The Company agrees to advise in
writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit hereunder. The Depositary may rely
on such a list or update but shall not be liable for any action or
omission made in reliance thereon.
5.13 Registration of Shares; Share Registrar; Share Register
(a) The Company agrees that it shall, at any time and from time to time:
(i) take any and all action as may be necessary to assure the
accuracy and completeness of all information set forth in the
Share Register maintained by the Share Registrar in respect of
the Shares or Deposited Securities;
(ii) to the extent permitted by applicable Ukrainian law, provide
or cause the Share Registrar to provide to the Depositary, the
Custodian or their respective agents access to the Share
Register for the purpose of verifying ownership rights during
ordinary business hours in Kyiv, Ukraine, in such manner and
upon such terms and conditions as the Depositary may, in its
sole discretion, deem appropriate;
(iii) cause the Share Registrar to promptly effect the
re-registration of ownership of Deposited Securities in the
Share Register in connection with any deposit or withdrawal of
Shares or Deposited Securities under this Deposit Agreement;
and
(iv) permit and cause the Share Registrar to permit the Custodian
to register as a nominal holder acting for the benefit of the
Depositary or its nominee.
(b) The Company agrees that it shall be solely liable for any act or
failure to act on the part of the 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 property with respect thereto as a result of
(i) any act or failure to act of the Company or its agents,
including the Share Registrar, or their respective directors,
employees, agents or affiliates, (ii) any provision of any present
or future Corporate Documents 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.
22
6. AMENDMENT AND TERMINATION
6.1 Amendment
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Owners or Beneficial
Owners of Receipts in any respect which they may deem necessary or
desirable. 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 Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold such Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of
any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
6.2 Termination
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to
the Owners of all Receipts then outstanding at least 90 days prior to the
date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of such
termination to the Company and the Owners of all Receipts then
outstanding, if at any time 90 days shall have expired after the
Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and
after the date of termination, the Owner 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 Section 2.5 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 Owners thereof, and shall not give any
further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and
other property as provided in this 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 Owner of such Receipt in accordance with the terms and conditions of
this Deposit Agreement, and any applicable taxes or governmental charges).
At any time after the expiration of one year from the date of termination,
the Depositary may sell the Deposited Securities then held hereunder and
may thereafter hold 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 Owners of Receipts
which have not theretofore been surrendered, such Owners 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 this Deposit Agreement, except to account for such
net proceeds and other cash
23
(after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8 and 5.9 hereof.
7. MISCELLANEOUS
7.1 Counterparts
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement
shall be filed with the Depositary and the Custodian and shall be open to
inspection by any Owner or Beneficial Owner of a Receipt during business
hours.
7.2 No Third Party Beneficiaries
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
7.3 Severability
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
7.4 Owners and Beneficial Owners as Parties; Binding Effect
The Owners and Beneficial Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of the Receipts by acceptance thereof.
7.5 Notices
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to 62, Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxxx xxxxxx 00000, Xxxxxxx, or any other
place to which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: American Depositary Receipt Administration, or any other place
to which the Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of
the Depositary, or, if such Owner shall have filed with the Depositary a
written
24
request that notices intended for such Owner be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the
case of a cable, telex or facsimile transmission) is deposited, postage
prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by
it, notwithstanding that such cable, telex or facsimile transmission shall
not subsequently be confirmed by letter as aforesaid.
7.6 Arbitration; Settlement of Disputes
(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 American Depositary Shares, the
Receipts or this Agreement, or the breach hereof or thereof, shall
be finally settled by arbitration in accordance with the Rules of
the London Court of International Arbitration, which rules are
deemed to be incorporated by reference into this Section 7.6, and
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 properly be joined, the Company
may be so joined in any court of competent jurisdiction 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 thereunder may, but need not, be submitted
to arbitration as provided in this Section 7.6.
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
reasonably experienced in international securities transactions. If
a dispute 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. If such alignment and
appointment shall not have occurred within twenty (20) calendar days
after the initiating party serves the arbitration demand, the London
Court of International Arbitration shall align the parties named in
the arbitration demand into a claimant side and a respondent side
and/or appoint one or both of such two arbitrators, as the case may
be. The third arbitrator, who shall be the Chairperson of the
tribunal, shall be appointed and designated by the two arbitrators
nominated by the parties (or appointed on their behalf by the London
Court of International Arbitration) or, if a Chairperson has not
been so designated within 20 days of the appointment of the second
such arbitrator, shall be appointed by the London Court of
International Arbitration. 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,
except that the Chairperson of the panel shall not be a national of
the country of any party.
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.
25
(b) Any controversy, claim or cause of action arising out of or relating
to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or this Deposit Agreement not subject to clause
(a) above shall be litigated in the Federal and state courts in the
Borough of Manhattan.
7.7 Submission to Jurisdiction; Appointment of Agent for Service of Process
The Company hereby (i) irrevocably designates and appoints CT Corporation
System, in the State of New York, as the Company's authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consents and submits to the
jurisdiction of any state or federal court in the State of New York 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 as such agent. 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 American
Depositary Shares or Receipts 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 certified or registered mail, return receipt requested,
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.
7.8 Waiver of Immunities
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 American
Depositary Shares, the Receipts or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents
to such relief and enforcement.
7.9 Governing Law
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the
laws of Ukraine.
7.10 Prohibition of Assignment
The Depository may not assign or otherwise transfer any of its rights or
obligations hereunder, except as otherwise provided herein or with written
consent of the Company.
26
IN WITNESS WHEREOF, OPEN JOINT STOCK COMPANY MARGANETSKY ORE MINING AND
PROCESSING ENTERPRISE and THE BANK OF NEW YORK have duly executed this Deposit
Agreement as of the day and year first set forth above and all Owners and
Beneficial Owners shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
OPEN JOINT STOCK COMPANY
MARGANETSKY ORE MINING AND
PROCESSING ENTERPRISE
By: ___________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: ___________________________
Name:
Title:
27
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one hundred deposited Shares)
IT IS EXPECTED THAT, IN ACCORDANCE WITH APPLICABLE UKRAINIAN SECURITIES
REGULATIONS, OWNERSHIP RIGHTS TO SHARES DEPOSITED HEREUNDER WILL BE REGISTERED
IN THE NAME OF THE DEPOSITARY OR ITS NOMINEE ON THE CUSTODIAL REGISTRATION
SYSTEM OF A DULY LICENSED CUSTODIAN APPOINTED BY THE DEPOSITARY; AND THAT THE
CUSTODIAN WILL BE REGISTERED AS NOMINAL HOLDER OF SUCH SHARES IN THE SHARE
REGISTER MAINTAINED BY THE SHARE REGISTRAR FOR OPEN JOINT STOCK COMPANY
MARGANETSKY ORE MINING AND PROCESSING ENTERPRISE. THE DEPOSITARY WILL NOT BE
LIABLE FOR THE UNAVAILABILITY OF COMMON 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 UKRAINIAN COUNSEL THAT COURTS IN UKRAINE MAY
NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN NEW YORK COURTS.
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
THE PAR VALUE OF 0.25 HRYVNIA EACH OF
OPEN JOINT STOCK COMPANY MARGANETSKY ORE MINING AND PROCESSING ENTERPRISE
(INCORPORATED UNDER THE LAWS OF UKRAINE)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of OPEN JOINT
STOCK COMPANY MARGANETSKY ORE MINING AND PROCESSING ENTERPRISE, incorporated
under the laws of Ukraine (herein called the "Company"). At the date hereof,
each American Depositary Share represents one hundred (100) Shares deposited or
subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the Kyiv office of ING Bank Ukraine (herein called the "Custodian").
The Depositary's Corporate Trust Office is located at a different address than
its principal executive office. Its Corporate Trust Office is located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is
located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX 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 [_____](herein called the "Deposit Agreement"),
by and among the Company, the Depositary, and all Owners and Beneficial Owners
from time to time of Receipts 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 Owners 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 office of 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
subject to the terms and conditions of the Deposit Agreement and accompanied by
such documents as the Depositary may require and upon payment of the fee of the
Depositary for the surrender of Receipts as provided in Section 5.9 of the
Deposit Agreement 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, the Corporate
Documents and the Deposited Securities, the Owner hereof is entitled to
delivery, to him or upon his order, of the Deposited Securities at the time
represented by the American Depositary Shares for which this Receipt is issued.
Delivery of such Deposited Securities may be made by the delivery of (a)
certificates or other documents evidencing title (including, without limitation,
as applicable, extracts from the Share Register or Custodial Register Excerpts)
in the name of the Owner hereof or as ordered by him or certificates properly
endorsed or accompanied by proper instruments of transfer and (b) any other
securities, property and cash to which such Owner is then entitled in respect of
this Receipt. Such delivery will be made at the option of the Owner hereof,
either at the office of the Custodian or, to the extent practicable, at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS
The transfer of this Receipt is registrable on the books of the Depositary at
its Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, upon surrender of this Receipt properly endorsed for transfer or
accompanied by proper instruments of transfer and funds sufficient to pay any
applicable transfer taxes and the expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such purpose.
This Receipt may be split into other such Receipts, or may be combined with
other such 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 presentor of the Receipt of a
sum sufficient to reimburse
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it for any tax 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 compliance with any regulations the Depositary may establish
consistent with the provisions of the Deposit Agreement or this Receipt,
including, without limitation, this Article 3.
The delivery of Receipts against deposit of Shares generally or against 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 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 at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, 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 not be suspended subject only to (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 of 1933, unless a registration statement is
in effect as to such Shares. In addition, the Depositary may from time to time
limit the number of Shares which may be deposited hereunder to facilitate
compliance with the rules and regulations as in effect from time to time of the
Anti-Monopoly Committee of the Ukraine.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES
The Depositary shall not be liable to the Company, any Owner or Beneficial
Owner, or any other person for any tax or other governmental charge that is or
may become payable in connection with the deposit or withdrawal of any Deposited
Securities or the offer, sale, pledge or other transfer of Deposited Securities
or the American Depositary Shares represented thereby. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities represented hereby, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or 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 Owner or 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 Owner or Beneficial Owner hereof shall remain
liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES
Every Depositing Shareholder shall be deemed by depositing Shares under the
Deposit Agreement to represent and warrant that the Depositing Shareholder is
transferring good and valid title to such Shares under Ukrainian law and that
such Shares and each certificate therefor are validly issued, fully paid,
non-assessable, and free of any preemptive rights of the holders of outstanding
Shares and that the Depositing Shareholder 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 would not be
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Restricted Securities. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION
Any Depositing Shareholder or any Owner or Beneficial Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, evidence of
payment of applicable taxes and other governmental charges or such information
relating to the registration on the books of the Company, the Share Registrar or
the Custodian, as nominal holder for the Depositary, if applicable, to execute
such certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof, evidence or other
information is filed or such certificates are executed or such representations
and warranties made. No Share shall be accepted for deposit unless accompanied
by evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in Ukraine which is then performing the
function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any 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 Section 4.3 of
the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
Register of the Company and applicable to transfers of Shares to or from the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals under the terms of the Deposit Agreement, (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 Section 4.5 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 Section
2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of Receipts pursuant
to Section 2.5 or 6.2 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 Sections 4.1 through 4.4 of the Deposit Agreement, (7) a fee for the
distribution of securities pursuant to Section 4.2 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 7 treating
all such securities as if they were Shares), but which securities are instead
distributed by the Depositary to Owners, (8) a fee of $.02 or less per American
Depositary Share (or portion thereof)for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; provided, however, that no fee will be assessed under this
clause (8) to the extent a fee of $.02 was charged pursuant to clause (6) above
during that calendar year and (9) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which
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charge shall be assessed against Owners as of the date or dates set by the
Depositary in accordance with Section 4.6 of the Deposit Agreement and shall be
payable at the sole discretion of the Depositary by billing such Owners for such
charge or by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary may execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement (a "Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, 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-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
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 Owner 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; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary 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 or for all other purposes.
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 signature of a duly authorized
signatory of the Depositary; provided, however that such signature may be a
facsimile if a Registrar for the Receipts shall have been appointed and such
Receipts are countersigned by the manual signature of a duly authorized officer
of the Registrar.
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11. REPORTS; INSPECTION OF TRANSFER BOOKS
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and documents will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary shall make available for inspection by Owners of Receipts at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will 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 Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS
Whenever the Depositary or the Custodian receives any cash dividend or other
cash distribution on any Deposited Securities, the Depositary will, if at the
time of receipt thereof any amounts received in Hryvnia or another foreign
currency can in the judgment of the Depositary be converted on a reasonable
basis into United States dollars transferable to the United States, and subject
to the Deposit Agreement, convert or cause to be converted such dividend or
distribution into dollars and will distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.9 of the Deposit Agreement and of applicable taxes and other
governmental charges) to the Owners of Receipts entitled thereto; provided,
however, that in the event that the Company, the Depositary or the Custodian is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Section 4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary
will cause the securities or property received by it to be distributed to the
Owners entitled thereto, 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 Owners of Receipts entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, 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 net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit
Agreement and of applicable taxes and other governmental charges) will be
distributed by the Depositary to the Owners of Receipts entitled thereto all in
the manner and subject to the conditions described in Section 4.1 of the Deposit
Agreement.
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If any distribution consists of a dividend in, or free distribution of, Shares,
the Depositary may distribute to the Owners of outstanding Receipts entitled
thereto 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
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 and the payment of the fees and expenses of the Depositary
as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement. In
lieu of delivering Receipts for fractional American Depositary Shares in any
such case, the Depositary will sell the amount of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.1 of the Deposit Agreement.
If additional Receipts are not so distributed, each American Depositary Share
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor)or any deposit of Shares,
transfer of Receipts or withdrawal of Deposited Securities hereunder is subject
to any tax or other governmental charge which the Depositary is obligated to
withhold, the Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners of Receipts entitled thereto. The Depositary shall forward
to the Company such information from its records as the Company may reasonably
request to enable the Company to file necessary reports with governmental
authorities or agencies, and either the Company or the Depositary may file any
such reports necessary to obtain benefits under any applicable tax treaties for
Owners.
Under applicable Ukrainian law, payments of cash or other distributions in
respect of the Deposited Securities under the Deposit Agreement may be subject
to significant taxation, some of which may be recoverable by the Depositary or
its agents acting for the benefit of Owners and Beneficial Owners under
applicable double-taxation treaties. Notwithstanding anything in the Deposit
Agreement to the contrary, before making any distribution or other payment on
any Deposited Securities, the Depositary may make or cause to be made such
deductions (if any) which, by the laws of Ukraine the Depositary is required to
make in respect of any income, capital gains or other taxes and the Depositary
may also deduct the amount of any tax or governmental charges payable by the
Depositary or for which the Depositary might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the Depositary shall have no obligation to any Owner or
Beneficial Owner to apply a rate under any treaty or other arrangement between
Ukraine and the country within which the Owner or Beneficial Owner is resident,
nor shall the Depositary have any obligation to take any action to recover any
amounts withheld or deducted under any applicable double-taxation treaty.
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 have discretion as to the
procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners 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
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
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determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner
of Receipts or the Company requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner or certain Owners hereunder, the Depositary will make such
rights available to such Owner or Owners upon written notice from the Company to
the Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner or Owners have executed such
documents as the Company has determined in its sole discretion are reasonably
required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to
all or certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner 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 other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, 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 Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article 13, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to appropriate restrictions on sale, deposit, cancellation and transfer under
such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.9 of the Deposit Agreement 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 Owners otherwise entitled to
such rights, warrants or other instruments, all in the manner and subject to the
conditions described in Section 4.1 of the Deposit Agreement.
Except as otherwise provided in the second paragraph of Section 4.4 of the
Deposit Agreement, the Depositary will not offer rights to Owners unless both
the rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create, any obligation on the part of
the Company 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 an Owner of Receipts or the Company 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 from recognized counsel in the
United States for the Company, which may be Xxxxx & XxXxxxxx, including its
London office (as long as partners admitted to practice in the United States are
resident there), upon which the Depositary may rely that such distribution to
the Owner or Owners to which it is to be made is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may
be lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
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14. CONVERSION OF FOREIGN CURRENCY
Whenever the Depositary or the Custodian shall receive Hryvnia or another
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 Hryvnia or other foreign currency so received can in the
judgment of the Depositary be converted on a reasonable basis into Dollars and
the resulting Dollars transferred to the United States, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into Dollars, and such Dollars shall be
distributed to the Owners 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
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file, or cause
the Custodian to file, such application for approval or license, if any, as it
may deem desirable.
If at any time the Depositary shall determine that in its judgment any Hryvnia
or other foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable 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 obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners 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 Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may 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 Owners 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 (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement.
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16. VOTING OF DEPOSITED SECURITIES
Upon receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, 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
received by the Depositary from the Company, (b) a statement that the Owners of
Receipts as of the close of business on a specified record date will be
entitled, subject to any applicable provision of law and of the Corporate
Documents of the Company, to instruct the Depositary as to the exercise of the
voting rights, 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 or deemed
given in accordance with the last sentence of this paragraph if no instruction
is received, to the Depositary to give a discretionary proxy to a person
designated by the Company. Upon the written request of an Owner of a Receipt on
such 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 such American Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. The Depositary shall
not vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions or
deemed instructions. If no instructions are received by the Depositary from any
Owner with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Owner's Receipts on or before the
date established by the Depositary for such purpose, the Depositary shall deem
such Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities; provided, that no such instruction
shall be deemed given and no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary (and the
Company agrees to provide such information as promptly as practicable in
writing) that (x) the Company does not wish such proxy given, (y) substantial
opposition exists or (z) such matter materially and adversely affects the rights
of holders of Shares.
17. CHANGES AFFECTING DEPOSITED SECURITIES
In circumstances where the provisions of Section 4.3 of the Deposit Agreement do
not apply, 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 be treated as new Deposited Securities
under the Deposit Agreement, and American Depositary Shares shall 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 execute and deliver additional 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 Owner or
Beneficial Owner of any Receipt, if by reason of (i) any provision of any
present or future law or regulation of the United States, Ukraine or any other
country or jurisdiction, (ii) any provision of any present or future regulation
of any governmental or regulatory authority or stock exchange or (iii) any act
of God or war or other circumstances beyond its control, the
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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 nor any of their respective directors, employees, agents or affiliates
incur any liability to any Owner 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 any of its directors, employees, agents or affiliates
shall incur any liability to any Owner or Beneficial Owner of any Receipt, if by
reason of (i) any act or failure to act of the Company or its agents, including
the Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision, present or future, of the Corporate Documents 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, the Depositary 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 nor any of its directors, employees, agents
or affiliates incur any liability to any Owner 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.
Where, by the terms of a distribution pursuant to Section 4.1, 4.2 or 4.3 of the
Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of the
Deposit Agreement, such distribution or offering may not be made available to
Owners of Receipts, and the Depositary may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Depositary shall not make such distribution or offering, and
shall allow any rights, if applicable, to lapse.
Neither the Company nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of Receipts, except that they agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith
except as set forth in Section 5.13 of the Agreement with respect to the
Company. The Depositary shall not be subject to any liability with respect to
the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner 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.
The Depositary shall not be liable to the Company, any Owner or Beneficial Owner
or any other person for the unavailability of Deposited Securities or for the
failure to make any distribution of cash or property with respect thereto as a
result of (i) any act or failure to act of the Company or its agents, including
the Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision of any present or future law or regulation of the
United States, Ukraine or any other country, (iii) any provision of any present
or future regulation of any governmental or regulatory authority or stock
exchange, (iv) any provision of any present or future Corporate Documents or any
other instrument of the
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Company governing the Deposited Securities, (v) any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or (vi) any act of God or war or other circumstance beyond its control.
The Company shall not be liable to the Depositary, any Owner or Beneficial Owner
or any other person for the unavailability of Deposited Securities or for the
failure to make any distribution of cash or property with respect thereto as a
result of (i) any provision of any present or future law or regulation of the
United States, Ukraine or any other country or jurisdiction, (ii) any provision
of any present or future regulation of any governmental or regulatory authority
or stock exchange or (iii) any act of God or war or other circumstance beyond
its control.
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 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 a 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 expenses of counsel) which may arise out of (a) and registration with
the Commission of Receipts, American Depository Shares or Deposited Securities
or the offer or sale thereof, (b) 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 or (c) the unavailability of Deposited
Securities or the failure to make any distribution of cash or property with
respect thereto as a result of (i) any act or failure to act of the Company or
its agents, including the Share Registrar, or their respective directors,
employees, agents or affiliates, (ii) any provision of any present or future
Corporate Documents or any other instrument of the Company governing Deposited
Securities or (iii) any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN
The Depositary may at any time resign as Depositary hereunder by written notice
of its election so to do delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by 120 days prior written notice of such removal, to
become effective upon the later of (i) the 120th day after delivery of the
notice to the Depositary and (ii) the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement.
Whenever the Depositary in its discretion determines that it is in the best
interest of the Owners of Receipts to do so, it may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT
The form of the Receipts 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 without the consent of Owners or Beneficial Owners of Receipts in any
respect which they may deem necessary or desirable. Any
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amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT
The Depositary at any time, at the direction of the Company, shall terminate the
Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner 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 Section 2.5 of
the Deposit Agreement 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 Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other 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 Owner 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 one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners 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 Owner 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 its obligations to the
Depositary with respect to indemnification, charges, and expenses.
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22. SUBMISSION TO JURISDICTION; ARBITRATION; WAIVER OF IMMUNITIES
The Deposit Agreement provides that any controversy, claim or cause of action
brought by any party to the Deposit Agreement against the Company arising out of
or relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, or the breach thereof, shall be
finally settled by arbitration in London, England, in accordance with the Rules
of the London Court of International Arbitration, which rules are deemed to be
incorporated by reference into this Article 22, and that 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 property be joined, the
Company may be so joined in any court of competent jurisdiction 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 thereunder
may, but need not, be submitted to arbitration as provided in the Deposit
Agreement. The Deposit Agreement also provides that any controversy, claim or
cause of action arising out of or relating to the Shares or other Deposited
Securities, the American Depositary Shares, the Receipts or the Deposit
Agreement not subject to arbitration shall be litigated in the Federal and state
courts in the Borough of Manhattan.
To the extent that the Company or any of its properties, assets or revenues may
have or 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 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 American Depositary Shares, the Receipts
or the Deposit Agreement, the Company, to the fullest extent permitted by law,
hereby irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
23. REGISTRATION OF SHARES; SHARE REGISTRAR; SHARE REGISTER
(a) The Company agrees that it shall, at any time and from time to time:
(i) take any and all action as may be necessary to assure the
accuracy and completeness of all information set forth in the Share
Register maintained by the Share Registrar in respect of the Shares
or Deposited Securities (ii) to the extent permitted by applicable
Ukrainian law, provide or cause the Share Registrar to provide to
the Depositary, the Custodian or their respective agents access to
the Share Register for the purpose of verifying ownership rights
during ordinary business hours in Kyiv, Ukraine, in such manner and
upon such terms and conditions as the Depository may, in its sole
discretion, deem appropriate (iii) cause the Share Registrar to
promptly effect the re-registration of ownership of Deposited
Securities in the Share Register in connection with any deposit or
withdrawal of Shares or Deposited Securities under this Deposit
Agreement and (iv) permit and cause the Share Registrar to permit
the Custodian to register as a nominal holder acting for the benefit
of the Depositary or its nominee.
(b) The Company agrees that it shall be solely liable for any act or
failure to act on the part of the 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 property with respect thereto as a result of
(i) any act or failure to act of the Company or its agents,
including the Share Registrar, or their respective directors,
employees,
A-14
agents or affiliates, (ii) any provision of any present or future
Corporate Documents 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.
24. DISCLOSURE OF INTERESTS
The Company or the Depositary may from time to time request Owners to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously having a
beneficial interest in such Receipts and the nature of such interest and various
other matters. Each Owner agrees to provide any information requested by the
Company or the Depositary pursuant to Section 3.4 of the Deposit Agreement and
this Article 24. To the extent that provisions of or governing any Deposited
Securities (including the Company's Corporate Documents or applicable law) may
require the disclosure of beneficial or other ownership of Deposited Securities,
other Shares and other securities to the Company and may provide for blocking
transfer and voting or other rights to enforce such disclosure or limit such
ownership, Owners and Beneficial Owners are required to comply with all such
disclosure requirements and ownership limitations and to cooperate with the
Depositary's compliance with Company instructions as to Receipts in respect of
any such enforcement or limitation.
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