AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of June , 2008 (the "Amendment") to the Amended and Restated Deposit Agreement
dated as of April 22, 2002 as further Amended and Restated as of December 15,
2002 (as so further amended and restated, the "Deposit Agreement"), among Public
Joint-Stock Company "Southern Telecommunications Company" (the "Company"),
incorporated under the laws of The Russian Federation, JPMorgan Chase Bank,
N.A., as depositary (the "Depositary"), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts ("Receipts") issued
thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to Section 6.01 of the Deposit Agreement, the Company and the
Depositary desire to amend the terms of the Deposit Agreement and
Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF RECEIPT
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or JPMorgan Chase Bank
shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. A
new
Section 3.04 is added to the Deposit Agreement and a newArticle 24 is added
to
the form of Receipt, each as follows:
Disclosure
of Interests. The
Company or, on the request of the Company, 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 pursuant to this Section 3.04. 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 or governing any Deposited
Securities (including the Company's Charter 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,
the Company may instruct the Depositary to shall use its reasonable efforts
under the circumstances to comply with the Company 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
Company instructions; provided, however, the Company acknowledges that no such
instructions shall be provided to the Depositary with respect to any Receipts
registered in the name of The Depository Trust Company or its
nominee.
2
SECTION
2.04. Section
5.13 of the Deposit Agreement is amended to reflect the appointment of Open
Joint Stock Company "Obiedinennaya registratsionnaya companiya" (United
Registration Company) as the Russian Share Registrar or such other Russian
Share
Registrar reasonably acceptable to the Depositary after no less than 45 days
prior written notice to the Depositary (except where the then current Russian
Share Registrar ceases to be legally permitted to provide registrar services,
in
which case the Depositary shall receive sufficient prior notice so as to enable
it to make a determination on the acceptance of such entity as a successor
Russian Share Registrar).
SECTION
2.05. Section
4.06 of the Deposit Agreement and Article 15 of the
Receipt
are each amended to include the following at the conclusion
thereof:
The
Depositary shall also fix a record date or record dates for the determination
of
the Owners who shall be responsible for the fees assessed by the Depositary
for
administration of the Receipt program and for any expenses provided for in
[Section 5.09] [Article 7] hereof.
SECTION
2.06 Section
5.03 of the Deposit Agreement and Article 18 of the Receipt are each amended
to
include the following immediately prior to the final sentence
thereof:
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Owners or Beneficial Owners for any indirect, special, punitive or
consequential damages.
SECTION
2.07. The
second paragraph of Section 5.08 of the Deposit Agreement is deleted in its
entirety and replaced with the following:
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.
3
Notwithstanding
any other provision of this Deposit Agreement (including, without limitation,
the indemnification provisions of the first two paragraphs of this Section
5.08)
or the Receipts to the contrary, neither the Company nor the Depositary, nor
any
of their agents, shall be liable to the other for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except (i)
to
the extent such Special Damages arise from the gross negligence or willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Owners) against the Depositary or its agents,
except to the extent such Special Damages arise out of the gross negligence
or
willful misconduct of the party seeking indemnification hereunder.
SECTION
2.08. Section
5.09 of the Deposit Agreement and Article 7 of the
form
of
Receipts are each amended to read as follows:
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions, issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the American Depositary
Shares or the Deposited Securities, and (ii) each person surrendering
American Depositary Shares for withdrawal of Deposited Securities or whose
American Depositary Shares are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 American Depositary Shares (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share distributions, rights and other
distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Owners, by any party depositing or withdrawing
Shares, or by any party surrendering American Depositary Shares, to whom
American Depositary Shares 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 American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares), whichever is
applicable (i) an aggregate fee of U.S.$0.03 per American Depositary Share
(or
portion thereof) per calendar year for services performed by the depositary
in
administering the Receipts (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Owners of Receipts as of the
record date or record dates set by the depositary during each calendar year
and
shall be payable at the sole discretion of the Depositary by billing such Owners
or by deducting such charge from one or more cash dividends or other cash
distributions), (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the American Depositary Shares are listed, a fee
of
U.S.$1.50 per Receipt or Receipts for transfers made pursuant to paragraph
(3)
hereof, (iii) a fee for the distribution or sale of securities pursuant to
Article 4 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 [Section 5.09][Article 7] treating all such securities as
if
they were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Owners entitled
thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Owners in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Owners or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Owners delivering Shares, Receipts or Deposited Securities (which are payable
by such persons or Owners), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Owners withdrawing Deposited Securities;
there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the Custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Shares or
other Deposited Securities (which charge shall be assessed against Owners as
of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Owners or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary. The charges and expenses of the Custodian are for the sole
account of the Depositary.
4
The
Depositary, subject to [Section 2.09][Article 8] hereof, may own and deal
in, any class of securities of the Company and its affiliates and in
Receipts.
SECTION
2.09. The
addresses of the Depositary set forth in the second paragraph of Section 7.05
of
the Deposit Agreement are amended to read as follows:
|
JPMorgan
Chase Bank, N.A.
|
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
SECTION
2.10. References
in the form of Receipt to "JPMorgan Chase Bank, a New York banking corporation"
are replaced with "JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States of America".
SECTION
2.11. The
last
sentence of the first paragraph of Article 11 of the form of Receipt is amended
to read as follows:
Such
reports and communications will be available for inspection and copying by
Owners and Beneficial Owners at the public reference facilities maintained
by
the Commission located at 000
X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.12. The
form
of Receipt, reflecting the amendments set forth herein
and
some
clarifying amendments thereto is amended and restated to read as set forth
as
Exhibit A hereto.
5
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and
warrants
to, and agrees with, the Depositary and the Owners, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 when executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Russian Federation,
neither of such agreements need to be filed or recorded with any court or other
authority in the Russian Federation, nor does any stamp or similar tax need
to
be paid in the Russian Federation on or in respect of such agreements;
and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
thirty days from the date notice hereof is first provided to Owners (the
"Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 5.08 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION
4.03. Governing
Law. This
Amendment and the Receipts as amended hereby shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION
4.04. Outstanding Receipts.
Receipts issued prior or subsequent to the date hereof, which do not reflect
the
changes to the form of Receipt effected hereby, do not need to be called in
for
exchange and may remain outstanding until such time as the Owners thereof choose
to surrender them for any reason under the Deposit Agreement. The Depositary
is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
6
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and
all
Owners shall become parties hereto by holding American Depositary Shares as
of
the Effective Date.
PUBLIC
JOINT-STOCK COMPANY
"SOUTHERN
TELECOMMUNICATIONS
COMPANY"
|
|
By:____________________________
Name:
A.V. Andreev
Title:
General
Director
|
JPMORGAN
CHASE BANK, N.A.
|
|
By:____________________________
Name:
Title:
|
7
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share represents fifty deposited Shares)
IT
IS
EXPECTED THAT SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE SHARE
REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR IN THE NAME OF THE DEPOSITARY
OR ITS NOMINEE OR OF THE CUSTODIAN OR ITS NOMINEE. OWNERS AND BENEFICIAL OWNERS
SHOULD BE AWARE, HOWEVER, THAT RUSSIA'S SYSTEM OF SHARE REGISTRATION AND CUSTODY
CREATES CERTAIN RISKS OF LOSS THAT ARE NOT NORMALLY ASSOCIATED WITH INVESTMENTS
IN OTHER SECURITIES MARKETS. THE DEPOSITARY WILL NOT BE LIABLE FOR THE
UNAVAILABILITY OF SHARES, OR FOR THE FAILURE TO MAKE ANY DISTRIBUTION OF CASH
OR
PROPERTY WITH RESPECT THERETO AS A RESULT OF SUCH UNAVAILABILITY.
THE
DEPOSITARY HAS BEEN ADVISED BY RUSSIAN COUNSEL THAT COURTS IN THE RUSSIAN
FEDERATION WILL NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN THE NEW YORK
COURTS.
JPMORGAN
CHASE BANK, N.A.
AMERICAN
DEPOSITARY RECEIPT FOR
COMMON
SHARES OF
THE
PAR
VALUE OF 0.33 RUBLES EACH OF
PUBLIC
JOINT-STOCK COMPANY "SOUTHERN TELECOMMUNICATIONS COMPANY"
(INCORPORATED
UNDER THE LAWS OF THE RUSSIAN FEDERATION)
8
JPMorgan
Chase Bank, N.A., as depositary (hereinafter called the "Depositary"), hereby
certifies that ________________________________________________________, or
registered assigns IS THE OWNER OF _____________________________
AMERICAN
DEPOSITARY SHARES
representing
deposited common shares in registered form, par value 0.33 Rubles each (herein
called "Shares") of PUBLIC JOINT-STOCK COMPANY "SOUTHERN TELECOMMUNICATIONS
COMPANY", incorporated under the laws of the Russian Federation (herein called
the "Company"). The term "Depositary" shall include the nominee of JPMorgan
Chase Bank, N.A. in whose name Shares are registered pursuant to the Deposit
Agreement (as such term is hereinafter defined). At the date hereof, each
American Depositary Share represents fifty Shares that is deposited or subject
to deposit under the Deposit Agreement (as such term is hereinafter defined)
at
the Moscow, Russian Federation, office of ING Bank (Eurasia) (Closed Joint
Stock
Company) (herein called the "Custodian").
THE
DEPOSITARY'S OFFICE ADDRESS IS
FOUR
XXX
XXXX XXXXX, XXX XXXX, XXX XXXX 00000
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
Amended and Restated Deposit Agreement, dated as of April 22, 2002 as further
Amended and Restated as of December 15, 2002 (as hereinafter amended from time
to time, the "Deposit Agreement"), by and among the Company, the Depositary,
and
the 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 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.
9
Upon
surrender at the Depositary's Office of this Receipt accompanied by such
documents as the Depositary may require (including a purchase/sale contract
relating to the transfer of the Shares), and upon payment of the fee of the
Depositary provided in this Receipt and subject to the terms and conditions
of
the Deposit Agreement, 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 extracts from the Share Register) in
the
name of the Owner hereof or as ordered by him or 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. The Depositary shall direct the Custodian or its agents to cause the
transfer and recordation by the Russian Share Registrar on the Share Register
of
the Shares being withdrawn in the name of such Owner or as directed by him
as
above provided, and the Company shall ensure that such transfer and recordation
is promptly effected. Upon such transfer and recordation, the Custodian shall
deliver at the Moscow, Russian Federation, office of the Custodian, subject
to
Sections 2.06, 3.01 and 3.02 and the other terms and conditions of the Deposit
Agreement, to or upon the written order of the person or persons designated
in
the order delivered to the Depositary as above provided, documents evidencing
title (including extracts from the Share Register) for the amount of Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, except that, if and to the extent practicable, the Depositary may
make
delivery to such person or persons at the Depositary's Office 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 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 evidencing title for (as described above), the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt to
the
Depositary for delivery at the Depositary's Office. Such direction shall be
given by letter or, at the request, risk and expense of such Owner, by cable,
telex or facsimile transmission.
10
3. TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary at the
Depositary's 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 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 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.
4. LIABILITY
OF OWNER OR BENEFICIAL OWNERS OF TAXES.
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, and such Owner or Beneficial Owner shall be deemed liable
therefor. In addition to any other remedies available to it, 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. The obligations of Owners and Beneficial Owners
under
this Article 4 shall survive any transfer of Receipts pursuant to Section 2.04
of the Deposit Agreement, any surrender of Receipts and withdrawal of Deposited
Securities pursuant to Section 2.05 of the Deposit Agreement, or the termination
of the Deposit Agreement pursuant to Section 6.02 of the Deposit
Agreement.
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5. WARRANTIES
ON DEPOSIT OF SHARES.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued, fully paid, non-assessable, and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
such Shares and the Receipts evidencing American Depositary Shares representing
such Shares would not be Restricted Securities. Such representations and
warranties shall survive the deposit of Shares and issuance of
Receipts.
6. FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION
Any
person presenting Shares for deposit 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,
or
such information relating to the registration on the books of the Company or
the
Russian Share Registrar, 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 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 the Russian
Federation which is then performing the function of the regulation of currency
exchange.
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7. CHARGES
OF DEPOSITARY.
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions, issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the American Depositary
Shares or the Deposited Securities, and (ii) each person surrendering
American Depositary Shares for withdrawal of Deposited Securities or whose
American Depositary Shares are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 American Depositary Shares (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share distributions, rights and other
distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Owners, by any party depositing or withdrawing
Shares, or by any party surrendering American Depositary Shares, to whom
American Depositary Shares 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 American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares), whichever is
applicable (i) an aggregate fee of U.S.$0.03 per American Depositary Share
(or
portion thereof) per calendar year for services performed by the depositary
in
administering the Receipts (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Owners of Receipts as of the
record date or record dates set by the depositary during each calendar year
and
shall be payable at the sole discretion of the Depositary by billing such Owners
or by deducting such charge from one or more cash dividends or other cash
distributions), (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the American Depositary Shares are listed, a fee
of
U.S.$1.50 per Receipt or Receipts for transfers made pursuant to paragraph
(3)
hereof, (iii) a fee for the distribution or sale of securities pursuant to
Article 4 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 Article 7 treating all such securities as if they were Shares)
but which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Owners entitled thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Owners in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Owners or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Owners delivering Shares, Receipts or Deposited Securities (which are payable
by such persons or Owners), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Owners withdrawing Deposited Securities;
there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the Custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Shares or
other Deposited Securities (which charge shall be assessed against Owners as
of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Owners or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary. The charges and expenses of the Custodian are for the sole
account of the Depositary.
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.
13
8. PRE-RELEASE
OF RECEIPTS.
Notwithstanding
Section 2.03 of the Deposit Agreement, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement (a "Pre-Release"). The Depositary may, pursuant to
Section 2.05 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 and
agreement from the person to whom Receipts 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, and may, with the prior
written consent of the Company, change such limit from time to time for purposes
of general application. The Depositary will also set Dollar limits with respect
to Pre-Release transactions to be entered into under the Deposit Agreement
with
any particular Pre-Release on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above will be held by the Depositary in connection with a Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Release obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance
of
doubt, constitute Deposited Securities under the Deposit
Agreement).
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
of
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 and neither the Depositary
nor the Company will have any obligation or be subject to any liability under
the Deposit Agreement to any holder of this Receipt, unless such holder is
the
Owner hereof.
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 or facsimile signature of a duly
authorized officer of the Registrar.
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, as amended. Such reports and communications will be available
for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The
Depositary will make available for inspection by Owners of Receipts at the
Depositary's 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 (i) copies of such
reports when furnished by the Company pursuant to Section 5.06 of the
Deposit Agreement, (ii) copies of any written communications provided to
the Depositary by the Russian Share Registrar pursuant to Section 5.13(b)(v)
of
the Deposit Agreement, and (iii) copies of any notices given or required to
be given by the Depositary pursuant to Section 5.13(d) of 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 the Depositary's 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.
14
12. DIVIDENDS
AND DISTRIBUTIONS.
Whenever
the Depositary 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 a 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 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 5.09 of the Deposit Agreement) to the Owners of Receipts entitled
thereto; provided, however, that in the event that the Company or the Depositary
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 Sections 4.11 and 5.09 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04 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 5.09 of the Deposit Agreement) 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 4.01 of the Deposit
Agreement.
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 as provided in Section 4.11 of the Deposit Agreement
and the payment of the fees and expenses of the Depositary as provided in
Article 7 hereof and Section 5.09 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 4.01 of the Deposit Agreement. If additional
Receipts are not 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 under the Deposit
Agreement is subject to any tax or other governmental charge which the
Depositary determines, in its absolute discretion, it is, or may be, 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.
15
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 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 requests the distribution of warrants or other instruments in order
to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner 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 has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If
the
Depositary had 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 2.02 of the Deposit Agreement, and shall, pursuant to
Section 2.03 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 the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
16
If
the
Depositary determines, in its discretion, that it is not lawful or 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 shall allocate the net proceeds of
such
sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 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, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
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 the
Deposit Agreement or this Receipt 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 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 upon which the Depositary may rely that such distribution to
such Owner 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
14. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, into the Depositary's foreign investment account
in the Russian Federation, and if at the time of the receipt thereof the foreign
currency so received can in the judgment of the Depositary be converted on
a
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 5.09 of the Deposit Agreement.
17
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may, in its sole discretion, 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.
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, (b) on or after which each
American Depositary Share will represent the changes number of Shares, subject
to the provisions of the Deposit Agreement or (c) for the determination of
the
Owners who shall be responsible for the fee assessed by the Depositary pursuant
to Article 7 hereof for inspection of the Share Register maintained by the
Russian Share Registrar.
The
Depositary shall also fix a record date or record dates for the determination
of
the Owners who shall be responsible for the fees assessed by the Depositary
for
administration of the Receipt program and for any expenses provided for in
Article 7 hereof.
18
16. VOTING
OF
DEPOSITED SECURITIES.
As
soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, , the Depositary shall mail to Owners a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Owner on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts and (c) the manner in
which
such instructions may be given. Upon receipt of instructions of a Owner on
such
record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented
by
the American Depositary Shares evidenced by such Owner's Receipts in accordance
with such instructions. 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. Deposited Securities underlying
American Depositary Shares for which no voting instructions have been received
from Owners shall not be counted as being present for the calculation of a
quorum at any meeting of the Company.
At
the
request of the Company, the Depositary shall deliver, at least two business
days
prior to the date of such meeting, a schedule of all instructions received
from
Owners in accordance with which the Depositary will vote or cause to be voted,
the Deposited Securities represented by the American Depositary Shares evidenced
by such Receipts at such meeting and corresponding information indicating the
number of copies of instructions to be delivered and the period of time that
is
required by the Depositary to furnish copies of all such information and the
Company and the Depositary will agree upon a schedule for such delivery and
the
costs to be paid therefor by the Company. Delivery of instructions will be
made
at the expense of the Company (unless otherwise agreed in writing by the Company
and the Depositary).
The
Company agrees to make the notice and any solicitation material for any such
meeting available to Beneficial Owners in a timely manner, and in any event
no
less than 28 days prior to the date of the relevant meeting of holders of
Shares, in order to allow such Beneficial Owners to provide voting instructions
to the relevant Owner. For the avoidance of doubt, it is agreed that the Company
shall bear the sole responsibility for distributing any notices and solicitation
materials to Beneficial Owners pursuant to the foregoing procedures, and the
Depositary shall assist the Company in conducting such distribution and shall
not be liable for the failure of the Company to do so or to do so in a timely
manner. The Company and the Depositary agree to cooperate with each other in
connection with the voting procedures described in this Article 16.
19
17. CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 4.03 of the Deposit Agreement
do not apply, upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification, 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 any provision of (a) any present or future
law
or regulation of the United States or any other country, or of any other
governmental or regulatory authority, or by reason of any act of God or war
or
other circumstances beyond its control, or (b) in the case of the Depositary
only, (i) any act or failure to act of the Company or its agents, including
the
Russian Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision, present or future, of the Charter of the Company
or any other instrument of the Company governing the Deposited Securities or
(iii) any provision of any securities issued or distributed by the Company,
or
any offering or distribution thereof, the Depositary or the Company shall be
prevented, delayed or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms
of
the Deposit Agreement or the Deposited Securities it is provided shall be done
or performed (including, in the case of the Depositary, delivery of any
Deposited Securities or distribution of cash or property in respect thereof
pursuant to Articles 12 and 13 hereof); nor shall the Depositary or the Company
or any of their respective directors, employees, agents or affiliates incur
any
liability to any Owner or Beneficial Owner of a 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. Where, by the terms of a
distribution pursuant to Sections 4.01, 4.02 or 4.03 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.04 of the
Deposit Agreement, 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. 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 (i) the Company agrees
to perform its obligations specifically set forth in the Deposit Agreement
without negligence or bad faith and (ii) the Depositary agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. 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 inaction by it
in
reliance upon the advice of or information from 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 or, in the case of the Depositary only, legal counsel.
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 inaction 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 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 Russian 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, the Russian Federation
or any other country, (iii) any provision of any present or future law or
regulation of the United States, the Russian Federation 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 Charter of the Company 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 agrees
to indemnify the Depositary, any Custodian, and their respective 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) any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities
or
the offer or sale thereof, or out of acts performed or omitted, in accordance
with the provisions of the Deposit Agreement and of the Receipts, as the same
may be amended, modified, or supplemented from time to time, (i) by either
the
Depositary or a Custodian or their respective directors, employees, agents
and
affiliates, except for any liability or expense arising out of the negligence
or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates, or (b) 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 Russian Share Registrar, or their respective
directors, employees, agents or affiliates, (ii) any provision of any present
or
future Charter of the Company or any other instrument of the Company governing
the Deposited Securities or (iii) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof.
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Owners or Beneficial Owners for any indirect, special, punitive or
consequential damages. No disclaimer of liability under the Securities Act
of
1933 is intended by any provision of the Deposit Agreement.
20
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 written notice of such removal, effective upon
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, with the prior consent of the Company, 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 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 Depositary's Office and (b) payment of any applicable taxes
or governmental charges and the fees and expenses of the Depositary, including
the fee of the Depositary for the surrender of Receipts referred to in Article
7
hereof, 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 in the manner provided in Section 2.05 of the Deposit Agreement.
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 fees 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.
21
22.
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 settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, 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 properly be joined, the
Company may be so joined in any court in which such litigation is proceeding;
and provided further that any such controversy, claim or cause of action that
relates to or is based upon the provisions of the Federal securities laws of
the
United States or the rules and regulations promulgated thereunder may, but
need
not, be submitted to arbitration as provided in the Deposit Agreement. The
Deposit Agreement further 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 above shall be litigated in the Federal and state courts
in the Borough of Manhattan.
22
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 sovereign
immunity, 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, in
any
such immunity and consents to such relief and enforcement.
23. REGISTRATION
OF SHARES; RUSSIAN SHARE REGISTRAR; SHARE REGISTER.
(a) The
Company has agreed in the Deposit Agreement 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 Russian
Share Registrar in respect of the Shares or Deposited Securities;
(ii)
provide or cause the Russian Share Registrar to provide to the Depositary,
the
Custodian or their respective agents unrestricted access to the Share Register
during ordinary business hours in Moscow, Russian Federation, in such manner
and
upon such terms and conditions as the Depositary may, in its sole discretion,
deem appropriate, to permit the Depositary, the Custodian or their respective
agents to regularly (and in any event not less than monthly) confirm the number
of Deposited Securities registered in the name of the Depositary, the Custodian
or their respective nominees, as applicable, pursuant to the terms of the
Deposit Agreement and, in connection therewith, to provide the Depositary,
the
Custodian or their respective agents, upon request, with a duplicative extract
from the Share Register duly certified by the Russian Share Registrar (or some
other evidence of verification which the Depositary, in its sole discretion,
deems sufficient);
23
(iii)
cause the Russian Share Registrar promptly (and in any event, within 72 hours
after receipt from the Custodian or any of its agents of such documentation
as
may be required by applicable law and the reasonable and customary regulations
of the Russian Share Registrar) to 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 the Deposit
Agreement;
(iv)
permit and cause the Russian Share Registrar to permit the Depositary or the
Custodian to register any Shares or other Deposited Securities held under the
Deposit Agreement in the name of the Depositary, the Custodian or their
respective nominees (which may, but need not be, a non-resident of the Russian
Federation); and
(v) cause
the
Russian Share Registrar promptly to notify the Depositary in writing at any
time
that the Russian Share Registrar (A) eliminates the name of a shareholder of
the
Company from the Share Register or otherwise alters a shareholder's interest
in
the Company's shares and such shareholder alleges to the Company, the Russian
Share Registrar or publicly that such elimination or alteration is unlawful;
(B)
no longer will be able materially to comply with, or has engaged in conduct
that
indicates it will not materially comply with, the provisions of the Deposit
Agreement relating to it (including, without limitation, Section 5.13
thereof); (C) refuses to re-register shares of the Company in the name of a
particular purchaser and such purchaser (or its respective seller) alleges
that
such refusal is unlawful; (D) holds shares of the Company for its own account;
or (E) has materially breached the provisions of the Deposit Agreement relating
to it (including, without limitation, Section 5.13 thereof) and has failed
to cure such breach within a reasonable time.
(b) The
Company has agreed in the Deposit Agreement that it shall be 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) the negligence or willful misconduct of the Company or its agents, including
the Russian Share Registrar, or their respective directors, employees, agents
or
affiliates, (ii) any provision of any present or future Charter of the Company
or any other instrument of the Company governing the Deposited Securities,
or
(iii) any provision of any securities issued or distributed by the Company,
or
any offering or distribution thereof.
(c) The
Depositary has agreed in the Deposit Agreement that the Depositary or the
Custodian will regularly (and in any event not less than monthly) confirm the
number of Deposited Securities registered in the name of the Depositary, the
Custodian or their respective nominees, as applicable, pursuant to the terms
of
the Deposit Agreement. The Company and the Depositary have agreed in the Deposit
Agreement that, for purposes of the rights and obligations under the Deposit
Agreement and this Receipt of the parties thereto and hereto, the records of
the
Depositary and the Custodian shall be controlling for all purposes with respect
to the number of Shares or other Deposited Securities which should be registered
in the name of the Depositary, the Custodian or their respective nominees,
as
applicable, pursuant to the terms of the Deposit Agreement. In the event of
any
material discrepancy between the records of the Depositary or the Custodian
and
the Share Register, then, if an officer of the ADR Department of the Depositary
has actual knowledge of such discrepancy, the Depositary will promptly notify
the Company. In the event of any discrepancy between the records of the
Depositary or the Custodian and the Share Register, the Company has agreed
that
(whether or not it has received any notification from the Depositary) it will
(i) use its best efforts to cause the Russian Share Registrar to reconcile
its
records to the records of the Depositary or the Custodian and to make such
corrections or revisions in the Share Register as may be necessary in connection
therewith, and (ii) to the extent the Company is unable to reconcile, promptly
instruct the Depositary to notify the Owners of the existence of such
discrepancy. Upon receipt of such instruction, the Depositary may at any time
give such notification to the Owners, whether or not it has received
instructions from the Company) and will promptly cease issuing Receipts pursuant
to Section 2.02 of the Deposit Agreement until such time as, in the opinion
of
the Depositary, such records have been appropriately reconciled.
24
24. DISCLOSURE
OF INTERESTS
The
Company or, on the request of the Company, 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 pursuant to this Section 3.04. 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 or governing any Deposited
Securities (including the Company's Charter 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,
the Company may instruct the Depositary to shall use its reasonable efforts
under the circumstances to comply with the Company 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
Company instructions; provided, however, the Company acknowledges that no such
instructions shall be provided to the Depositary with respect to any Receipts
registered in the name of The Depository Trust Company or its
nominee.
