AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1, dated
as
of December 18, 2007 (the “Amendment”), to the Amended and Restated Deposit
Agreement dated as of June 2, 1999 to the Deposit Agreement dated as of November
13, 1997 (as so amended and restated and amended hereby, the “Deposit
Agreement”), among MAGYAR
TELEKOM TÁVKÖZLÉSI NYILVÁNOSAN MŰKÖDŐ RÉSZVÉNYTÁRSASÁG (fka Magyar
Távközlési Rt.) (Budapest, 1013, Xxxxxxxxx xxx. 00, Xxxxxxx, registration
number: Cg. 01-10-041928), incorporated under the laws of the Republic of
Hungary (the “Company”), JPMORGAN CHASE BANK, N.A. (fka Xxxxxx Guaranty Trust
Company of New York), as depositary (the “Depositary”), and all holders from
time to time of American depositary receipts (“ADRs”) issued
thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein;
WHEREAS,
pursuant to paragraph (16) of the form of ADR contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement, the currently outstanding ADRs and the form of ADR annexed
to
the Deposit Agreement as Exhibit A thereto.
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, the currently outstanding ADRs and the form of ADR annexed to the
Deposit Agreement as Exhibit A thereto as follows:
1
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. Deposit
Agreement.
All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Amended and Restated
Deposit Agreement dated as of June 2, 1999 as amended by this
Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. Section
16 of the Deposit Agreement is amended by inserting the following immediately
prior the last sentence thereof:
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR 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,
Holders) 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
2.04. The
addresses of the Depositary set forth in Section 17(a) of the Deposit
Agreement is amended to read as follows:
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(a)
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JPMorgan
Chase Bank, N.A.
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Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01. SECTION
2.04. References
in the Form of ADR to “Xxxxxx Guaranty Trust Company of New York, a New York
Corporation” are replaced with “JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States of America”.
SECTION
3.02.
Paragraph (7) of the form of ADR is amended to read as follows:
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, up to U.S. $5.00
for
each 100 ADSs (or portion thereof) evidenced by the ADRs issued or surrendered.
The Depositary may sell (by public or private sale) sufficient securities
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 Holders, by any party depositing or withdrawing Shares or by
any
party surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i)
an
aggregate fee of U.S.$0.02 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against holders of ADRs 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 Holders or by deducting such charge from
one
or more cash dividends or other cash distributions), and (ii) such fees and
expenses as are incurred by the Depositary (including without limitation
expenses incurred on behalf of Holders 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 persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing
Shares or named in Delivery Orders or withdrawing Deposited Securities or named
in Withdrawal Orders (which are payable by such persons), (iii) transfer or
registration fees for the registration of transfer of Deposited Securities
on
any applicable register in connection with the deposit of Shares or withdrawal
of Deposited Securities (which are payable by persons depositing Shares or
withdrawing Deposited Securities), (iv) expenses of the Depositary in connection
with the conversion of foreign currency into U.S. dollars and in compliance
with
foreign exchange regulations (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 Holders 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 Holders or by deducting such charge
from one or more cash dividends or other cash distributions). These charges
may
be changed in the manner indicated in paragraph (16).
3
SECTION
3.03. The
last
sentence of paragraph (11) of the form of Receipt is amended to
read
as follows:
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at
000
X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
3.04. Paragraph
(14) of the form of ADR is amended by inserting the following
sentences immediately prior to the last sentence thereof:
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or an ADR, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any ADR or ADRs or otherwise related hereto
to
the extent such information is requested or required by or pursuant to any
lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
Neither the Company nor the Depositary nor any of their respective agents shall
be liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages.
4
SECTION
3.05. The
form
of ADR set forth in Exhibit A to the Deposit Agreement is amended
to reflect the amendments set forth herein and shall be in the form attached
hereto as Exhibit
A.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;
and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Republic of Hungary,
neither of such agreements need to be filed or recorded with any court or other
authority in the Republic of Hungary, nor does any stamp or similar tax or
governmental charge need to be paid in the Republic of Hungary on or in respect
of such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective thirty
days after notice hereof has been provided to Holders (the “Effective
Date”).
SECTION
5.02. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary
is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any
and all
liability it or they may incur as a result of the terms of this Amendment
and
the transactions contemplated herein.
5
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.
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MAGYAR
TELEKOM TÁVKÖZLÉSI NYILVÁNOSAN MŰKÖDŐ RÉSZVÉNYTÁRSASÁG
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JPMORGAN
CHASE BANK, N.A.
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6
Exhibit
A
[FORM
OF
FACE OF ADR]
No.
of
ADSs:
________
Number
Each
ADS
represents
Five
Shares
CUSIP:
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
REGISTERED
SHARES
(or
the
rights to receive such Registered Shares)
of
MAGYAR
TELEKOM TÁVKÖZLÉSI NYILVÁNOSAN MŰKÖDŐ RÉSZVÉNYTÁRSASÁG
(Incorporated
under the
laws
of
the Republic of Hungary)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the “Depositary”), hereby certifies that
is the
registered holder of
American
Depositary Shares (“ADSs”), each (subject to paragraph (13)) representing five
registered shares (including the rights to receive Shares described in paragraph
(1), “Shares” and, together at any time with all Shares at such time deposited
under the Deposit Agreement, hereinafter defined, and any and all other Shares,
securities or cash at such time held for the account of the Depositary in
respect or in lieu of such deposited Shares and other Shares, securities and
cash, the “Deposited Securities”), of MAGYAR
TELEKOM XXXXXXXXXX XXXXXXXXXXX XXXXXX XXXXXXXXXXXXXXXX,
a
corporation organized under the laws of the Republic of Hungary and its
successors (the “Company”), deposited with the Custodian (subject to paragraph
(15), the “Custodian”) for such purpose under the Amended and Restated Deposit
Agreement dated as of June 2, 1999 (as amended from time to time, the “Deposit
Agreement”) among the Company, the Depositary and all holders from time to time
of American Depositary Receipts issued thereunder (“ADRs”), each of whom by
accepting an ADR becomes a party hereto and thereto. The Deposit Agreement
and
this ADR (which includes the provisions set forth on the reverse hereof) shall
be governed by and construed in accordance with the laws of the State of New
York.
A-1
(1) Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to the
Deposit Agreement and paragraphs (4) and (7), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or
(c)
unless requested in writing by the Company to cease doing so at least two
business days in advance of the proposed deposit, other rights to receive Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
“Pre-released ADSs”) only if (i) Pre-released ADSs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
“Deposited Securities”), (ii) each recipient of Pre-released ADSs represents and
agrees in writing with the Depositary that such recipient or its customer (a)
beneficially owns such Shares, (b) assigns all beneficial right, title and
interest therein to the Depositary for the benefit of the Holders, (c) holds
such Shares for the account of the Depositary and (d) will deliver such Shares
to the Custodian as soon as practicable and promptly but in no event more than
five business days after demand therefor and (iii) all Pre-released ADSs
constitute not more than 20% of all ADSs (excluding Pre-released ADSs). The
Depositary may retain for its own account any earnings on collateral for
Pre-released ADSs and its charges for issuance thereof. Shares or evidence
of
rights to receive Shares may be deposited through (x) the electronic transfer
of
such Shares to the account therefor maintained by the Custodian solely in its
capacity as the central clearing agency for securities in the Republic of
Hungary (AKELER@),
(y)
evidence satisfactory to the Custodian of irrevocable instructions to cause
such
Shares to be transferred to such account or (z) delivery of certificates
representing such Shares. If use of the KELER book-entry system in connection
with the ADSs is discontinued at any time for any reason, the Company shall
make
such other book-entry arrangements (if any) that it determines, after
consultation with the Depositary, are reasonable. At the request, risk and
expense of the person depositing Shares, the Depositary may accept Shares for
forwarding to the Custodian and may deliver certificated ADRs, if then available
pursuant to Section 2 of the Deposit Agreement, at a place other than the
Transfer Office. Every person depositing Shares under the Deposit Agreement
is
deemed to represent and warrant that such Shares are validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the
person making such deposit is duly authorized so to do and that such Shares
(A)
are not “restricted securities” as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs, the transfer of ADRs, and the withdrawal of Shares in
respect of surrendered ADRs.
(2) Withdrawal
of Deposited Securities.
Subject
to the Deposit Agreement and paragraphs (4), (5) and (7) and to the provisions
of or governing Deposited Securities (including the Company’s Articles of
Association or applicable law), upon surrender of a certificated ADR in form
satisfactory to the Depositary or, in the case of a Direct Registration ADR
proper instructions and documentation, in each case delivered at the Transfer
Office and receipt by the Depositary of a written order (a “Withdrawal Order”)
from or on behalf of such beneficial owner or Holder, as the case may be,
directing the Depositary to deliver the Deposited Securities represented by
the
ADSs evidenced by such ADR at the Custodian’s office to or to the order of the
persons designated therein, the Holder hereof is entitled to delivery, as
promptly as practicable, at the Custodian’s office of the Deposited Securities
represented by the ADSs evidenced hereby to or to the order of the persons
named
in such Withdrawal Order. At the request, risk and expense of the Holder hereof,
the Depositary may deliver such Deposited Securities at such other place as
may
have been requested by the Holder. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of
Form
F-6 under the Securities Act of 1933.
A-2
(3) Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the “Transfer Office”), (a) a
register (the “ADR Register”) for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter related to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register shall include the Direct Registration
System. The Depositary, subject to the Deposit Agreement, shall register
transfers of ADRs in the ADR Register as promptly as practicable after surrender
of an ADR at its Transfer Office by the Holder in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
and duly stamped as may be required by applicable law. Title to this ADR (and
to
the Deposited Securities represented by the ADSs evidenced hereby) when properly
endorsed in the case of certificated ADRs 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 the State of New York; provided
that the
Depositary and the Company, notwithstanding any notice to the contrary, may
treat the person or persons in whose name this ADR is registered on the ADR
Register (the “Holder”) as the absolute owner hereof for all purposes. Subject
to paragraphs (4) and (5), this ADR is transferable on the ADR Register and
may
be split into other ADRs or combined with other ADRs into one ADR, evidencing
the same number of ADSs evidenced by this ADR, by the Holder hereof or by such
Holder’s duly authorized attorney upon surrender of this ADR at the Transfer
Office properly endorsed or accompanied by proper instruments of transfer and
duly stamped as may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it in connection with the performance of its duties
hereunder, after making reasonable efforts to consult with the Company if
practicable in the case of any closure outside of the ordinary course of
business or as reasonably requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4) Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7); (b) the
production of (i) proof satisfactory to it of the identity and genuineness
of
any signature, and (ii) such other information, including, without limitation
information as to citizenship, residence, exchange control approval, beneficial
ownership of ADRs, Deposited Securities or other securities, compliance with
applicable law, regulations, provisions of or governing Deposited Securities
and
terms of the Deposit Agreement and this ADR, as it may deem necessary or proper;
and (c) compliance with such regulations as the Depositary may establish
consistent with the Deposit Agreement. The Depositary shall notify the Company
of any procedures it establishes in the future pursuant to clause (c) above.
The
acceptance of deposits of Shares, the issuance, registration, registration
of
transfer, split-up or combination of ADRs or, subject to the last sentence
of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register
for
Deposited Securities is closed or when any such action is deemed necessary
or
advisable by the Depositary (after consultation with the Company to the extent
practicable) or the Company (after consultation with the
Depositary).
A-3
(5) Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian, the Depositary or the Company with respect to this ADR, any Deposited
Securities represented by the ADSs evidenced hereby or any distribution thereon,
such tax or other governmental charge shall be paid by the Holder hereof to
the
Depositary for forwarding as appropriate. The Depositary may refuse to effect
any registration, registration of transfer, split-up or combination hereof
or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from
any
distribution on or in respect of Deposited Securities, or may sell (by public
or
private sale) for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of
any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency. Upon any such sale, the Depositary shall,
if appropriate, reduce the number of ADSs evidenced hereby to reflect such
sale
and shall distribute the net proceeds of any such sale after deduction of such
tax or other governmental charge to the Holder hereof. Each of the Company
and
the Depositary will forward to the other in a timely fashion such information
from its records as the other may reasonably request to enable it 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 Holders. The Company and the Depositary
shall cooperate with each other in efforts to make and maintain arrangements
enabling Holders to receive any tax credits or other benefits (pursuant to
treaty or otherwise) relating to dividend payments on the ADSs. In connection
with any distribution on Deposited Securities or to Holders, the Company will
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 Company,
and the Depositary and the Custodian will 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.
(6) Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities (including
the Company’s Articles of Association or applicable law) may require disclosure
of or impose limits on beneficial or other ownership of Deposited Securities,
other Shares and other securities and may provide for blocking transfer, voting
or other rights to enforce such disclosure or limits, Holders, all persons
holding ADRs and all persons holding beneficial interests in ADRs agree to
comply with all such disclosure requirements and ownership limitations and
to
cooperate with the Depositary in the Depositary’s compliance with any Company
instructions in respect thereof, and the Depositary shall use its reasonable
efforts to comply, to the extent practicable, with such Company instructions.
Each Holder and all persons holding ADRs or beneficial interests in ADRs
acknowledge that failure to provide on a timely basis any required notification
of an interest in Shares may result in withholding of certain rights, including
voting and dividend rights, in respect of the Shares in which such Holder or
owner of a beneficial interest has an interest. All persons holding ADRs or
beneficial interests in ADRs agree to comply with all such disclosure
requirements and ownership limitations. The Company reserves the right to
instruct Holders to deliver their ADRs for cancellation and withdrawal of the
Deposited Securities so as to permit the Company to deal directly with the
Holder thereof as a holder of Shares. The Company may also refuse to allow
such
Holder to redeposit such Shares into the ADR facility. The Depositary agrees
to
cooperate with the Company in its efforts to inform Holders of the
Company=s
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk or expense on the part of the
Depositary, to the Company on the manner or manners in which it may enforce
the
withholding of such rights with respect to any Holder.
A-4
(7) Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, up to U.S. $5.00
for
each 100 ADSs (or portion thereof) evidenced by the ADRs issued or surrendered.
The Depositary may sell (by public or private sale) sufficient securities
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 Holders, by any party depositing or withdrawing Shares or by
any
party surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i)
an
aggregate fee of U.S.$0.02 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against holders of ADRs 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 Holders or by deducting such charge from
one
or more cash dividends or other cash distributions), and (ii) such fees and
expenses as are incurred by the Depositary (including without limitation
expenses incurred on behalf of Holders 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 persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing
Shares or named in Delivery Orders or withdrawing Deposited Securities or named
in Withdrawal Orders (which are payable by such persons), (iii) transfer or
registration fees for the registration of transfer of Deposited Securities
on
any applicable register in connection with the deposit of Shares or withdrawal
of Deposited Securities (which are payable by persons depositing Shares or
withdrawing Deposited Securities), (iv) expenses of the Depositary in connection
with the conversion of foreign currency into U.S. dollars and in compliance
with
foreign exchange regulations (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 Holders 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 Holders or by deducting such charge
from one or more cash dividends or other cash distributions). These charges
may
be changed in the manner indicated in paragraph (16).
A-5
(8) Available
Information.
The
Depositary shall make available at the principal office in the United States
of
the Depositary, the Custodian and the Transfer Office for inspection by Holders
the Deposit Agreement, the Company’s Articles of Association and any reports and
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities. The Depositary will mail
copies of such reports and communications (or English translations or summaries
thereof) to Holders when furnished by the Company. The Company is subject to
the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the United States Securities and Exchange
Commission (the “Commission”). Such reports and other information may be
inspected and copied at public reference facilities maintained by the Commission
located at the date hereof at 000 X Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual signature of a duly authorized officer of the Depositary.
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|||
|
By:
|
|
||
| Authorized Officer | |||
At
the
date of the Deposit Agreement, the Depositary’s Transfer Office is located at 0
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-6
[FORM
OF
REVERSE OF ADR]
(10) Distributions
on Deposited Securities.
Subject
to paragraphs (4), (5) and (7), to the extent practicable, the Depositary will,
as promptly as practicable, distribute by mail to each Holder entitled thereto
on the record date set by the Depositary therefor at such Holder’s address shown
on the ADR Register, in proportion to the number of Deposited Securities (on
which the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder’s ADRs: (a) Cash:
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) (“Cash”), on an averaged or
other practicable basis as soon as practicable after receipt of such Cash,
subject to appropriate adjustments for (i) taxes or other governmental charges
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary’s reasonable
and customary charges and expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine
to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States
by
such means as the Depositary may determine to the extent that it determines
that
such transfer may be made on a reasonable basis, (3) obtaining any approval
or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time, and
(4)
making any sale by public or private means in any commercially reasonable
manner. If the Company shall have advised the Depositary pursuant to the
provisions of the Deposit Agreement that any such conversion, transfer or
distribution can be effected only with the approval or license of the government
of the Republic of Hungary or any agency thereof or the Depositary shall become
aware of any other governmental approval or license required therefor, the
Depositary may apply for such approval or license, if any, as the Company or
its
Hungarian counsel may reasonably instruct in writing or as the Depositary may
deem desirable. Whenever the Depositary or the Custodian shall receive foreign
currency, as a cash dividend or other cash distribution or as the net proceeds
from the sale of securities or rights, which, in the judgment of the Depositary
can then be converted on a reasonable basis into U.S. dollars and distributed
to
Holders entitled thereto in the United States, the Depositary shall convert
or
cause to be converted, as promptly as practicable, by sale or in any other
manner that it may determine, such foreign currency into U.S. dollars using
reasonable efforts to effect such conversion and shall transfer the resulting
U.S. dollars (net of its reasonably and customary charges and expenses in
effecting such conversion) to the United States. If at any time the Depositary
shall, after consultation with the Company, if practicable, determine that
in
its reasonable judgment any foreign currency received by the Depositary is
not
convertible on a reasonable basis into U.S. dollars transferable to the United
States, or if any approval or license of any governmental authority or agency
thereof that is required for such conversion is denied or in the opinion of
the
Depositary is not obtainable at a reasonable cost or within a reasonable period,
the Depositary shall, subject to applicable laws and regulations and upon
payment of any fees and expenses of the Depositary in connection therewith,
(a)
to the extent requested to do so in writing by Holders entitled to receive
the
same, distribute the foreign currency (or an appropriate document evidencing
the
right to receive such foreign currency) to such Holders or, (b) to the extent
not so requested or to the extent it so deems practicable, hold such foreign
currency (without liability for interest thereon or the investment thereof)
for
the respective accounts of the other Holders entitled to receive the same.
If at
the time the Depositary shall determine that in its judgment any U.S. dollars
received by the Depositary upon conversion of foreign currency are not
transferable into the United States, or if any approval or license of any
governmental authority or agency thereof that is required for such transfer
is
denied or in the opinion of the Depositary is not obtainable at a reasonable
cost or within a reasonable period, the Depositary shall hold such U.S. dollars
(without liability for interest thereon or investment thereof) for the
respective accounts of the Holders entitled to receive the same. If any such
conversion of foreign currency and transfer into U.S. dollars, in whole or
in
part, can be effected for distribution to some but not all of the Holders
entitled thereto, the Depositary may, in its reasonable discretion make such
conversion and distribution in U.S. dollars to the extent permissible to the
Holders entitled thereto and may distribute the balance of the foreign currency
received by the Depositary to, or hold such balance (without liability for
interest thereon or investment thereof) for the respective accounts of, the
Holders entitled thereto for whom such conversion and distribution is not
practicable; (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a “Share Distribution”), and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADSs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities (“Rights”), to the extent that
the Company so instructs and timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same (the Company has no obligation to so furnish such evidence), or (ii) to
the
extent that such evidence is not furnished and sales of Rights are practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Rights as in the case of Cash, or (iii) to the extent that such evidence is
not
furnished and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights (“Other Distributions”), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities not to be equitable and practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Other
Distributions as in the case of Cash. Distributions of U.S. dollars pursuant
to
any clause of this paragraph (10) will be distributed by checks drawn on a
bank
in the United States for whole dollars and cents (any fractional cents being
withheld without liability for interest and added to future distributions of
U.S. dollars). Notwithstanding anything herein to the contrary, the Company
shall have no obligation to either (i) register any ADSs, Shares, Rights or
other securities described in this paragraph (10) under the Securities Act
or
(ii) take other actions to permit the distribution of such ADSs, Shares, Rights
or other securities in accordance with applicable U.S. securities
laws.
A-7
(11) Record
Dates.
The
Depositary shall, after consultation with the Company, if practicable, fix
a
record date (which shall be as near as practicable to any corresponding record
date set by the Company) for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities
or
the net proceeds thereof, to give instructions for the exercise of any voting
rights in respect of Deposited Securities, to receive any notice or to act
in
respect of other matters and, only such Holders at the close of business on
such
record date shall be so entitled.
(12)
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, unless the Company informs the Depositary otherwise in order to
comply with applicable law, the Company=s
Articles of Association or the provisions of or governing the Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials (or
a
summary thereof in English if the Company, in its discretion, decides to provide
such summary), (b) that each Holder at the close of business on the record
date
set by the Depositary therefor will be entitled, subject to any applicable
provisions of Hungarian law and the Company’s Articles of Association, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by the ADSs evidenced by
such
Holder’s ADRs and (c) the manner in which such instructions may be given,
including express instructions to give a proxy to a person designated by the
Company to vote in the manner directed by the Company. Upon receipt of
instructions of a Holder 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 applicable law, the
Company’s Articles of Association and the provisions of or governing Deposited
Securities to vote or cause to be voted (or for the Depositary to grant a proxy
(in accordance with instructions received from Holders) to the Company to vote)
the Deposited Securities represented by the ADSs evidenced by such Holder’s ADRs
in accordance with such instructions. The Depositary shall not vote or cause
to
be voted Deposited Securities other than in accordance with such instructions
received from Holders. Subject to the rules of any securities exchange on which
the Deposited Securities are listed, the Depositary shall use its reasonable
efforts to deliver to the extent practicable prior to the date notified by
the
Company as the last day for the deposit of Deposited Securities to the Company
voting instructions received from Holders.
(13) Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, consolidation, cancellation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation, liquidation or sale of all or
substantially all of the assets of the Company, any securities or cash that
shall be received by the Depositary in exchange for, or in conversion or
replacement of, Deposited Securities shall constitute Deposited Securities
under
the Deposit Agreement, and each ADS evidenced by this ADR shall automatically
represent its pro rata
interest
in the Deposited Securities as so constituted, subject to the provisions of
the
following sentence. In any such case the Depositary may with the Company’s
approval (which approval shall not be unreasonably withheld), and shall if
the
Company shall so reasonably request, subject to the Deposit Agreement,
distribute any part of the securities or cash so received or execute and deliver
additional ADRs as in the case of a dividend of Shares, in either case in
accordance with paragraph (10), and thereafter the Depositary may, in its
discretion but with the prior approval of the Company (which approval shall
not
be unreasonably withheld), call for the surrender of outstanding ADRs to be
exchanged for new ADRs specifically describing such newly received Deposited
Securities to the extent not so distributed.
A-8
(14) Exoneration.
The
Depositary, the Company, their respective agents and each of them shall: (a)
incur no liability (i) if law, rule or regulation of the United States, the
Republic of Hungary or any other country or of any other governmental or
regulatory authority or stock exchange or the Company’s Articles of Association,
the provisions of or governing any Deposited Security, the issuance of any
securities by the Company, any act of God, war or other circumstance beyond
its
control shall prevent, delay or subject to any civil or criminal penalty any
act
which the Deposit Agreement or this ADR provides shall be done or performed
by
it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR or the Company’s Articles of
Association; (b) assume no liability except to perform its obligations (other
than those directly related to the handling of Deposited Securities, ADRs and
Cash) to the extent they are specifically set forth in this ADR and the Deposit
Agreement without gross negligence or bad faith; (c) assume no liability except
to perform its obligations directly related to the handling of Deposited
Securities, ADRs and Cash to the extent they are specifically set forth in
this
ADR and the Deposit Agreement without negligence or bad faith; (d) in the case
of the Depositary and its agents, be under no obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (e) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required, or (f) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or beneficial owner of an interest in ADRs, or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, its agents and the Company may rely and shall
be
protected in acting upon any written notice, request, direction or other
communication believed by them in good faith to be genuine and to have been
signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions
to
vote any of the Deposited Securities, for the manner in which any such vote
is
cast or for the effect of any such vote, provided
that
such action or inaction is in good faith. Subject to the Company’s Articles of
Association and the Deposit Agreement, the Depositary and its agents may own
and
deal in any class of securities of the Company and its affiliates and in ADSs.
The Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company under
certain circumstances. Notwithstanding anything to the contrary set forth in
the
Deposit Agreement or an ADR, the Depositary and its agents may fully respond
to
any and all demands or requests for information maintained by or on its behalf
in connection with the Deposit Agreement, any Holder or Holders, any ADR or
ADRs
or otherwise related hereto to the extent such information is requested or
required by or pursuant to any lawful authority, including without limitation
laws, rules, regulations, administrative or judicial process, banking,
securities or other regulators. Neither the Company nor the Depositary nor
any
of their respective agents shall be liable to Holders or beneficial owners
of
interests in ADSs for any indirect, special, punitive or consequential damages.
No disclaimer of liability under the Securities Act of 1933 is intended by
any
provision hereof.
(15) Resignation
and Removal of Depositary; the Custodian.
Subject
to Section 13 of the Deposit Agreement, the Depositary may resign as Depositary
by notice of its election to do so delivered to the Company, or be removed
as
Depositary by the Company by notice of such removal delivered to the Depositary;
such resignation or removal shall take effect upon the appointment of and
acceptance by a successor depositary. Subject to Section 9 of the Deposit
Agreement, the Depositary may appoint substitute or additional Custodians to
the
Custodian named hereon pursuant to the Deposit Agreement and the term
“Custodian” refers to each Custodian or all Custodians, as the context requires,
then acting as such.
A-9
(16) Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by agreement between the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges on the Holders (other
than stock transfer or other taxes and other governmental charges, transfer
or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to this Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, 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 Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and
the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR
to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination.
The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Deposit Agreement, after giving the notice set
forth in the preceding sentence of this paragraph (17) at any time after 45
days
has elapsed after the Depositary shall have delivered to the Company its written
resignation, provided
that no
successor depositary shall have been appointed and accepted its appointment
as
provided in Section 13 of the Deposit Agreement and paragraph (15) of this
ADR
before the end of such 45 days. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to advise Holders of such termination, receive
and hold (or sell) distributions on Deposited Securities and deliver Deposited
Securities being withdrawn together with any such distributions on Deposited
Securities (without liability for interest) and any net proceeds of the sale
of
any Rights, without liability for interest, as the Depositary may reasonably
effect. As soon as practicable after the expiration of six months from the
date
so fixed for termination, the Depositary shall sell the Deposited Securities
and
shall thereafter (as long as it may lawfully do so) hold in a segregated account
the net proceeds of such sales, together with any other cash then held by it
under the Deposit Agreement, without liability for interest, in trust for the
pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and for its obligations under Section 16 of the Deposit Agreement. After the
date so fixed for termination, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents under paragraph (7) hereof and Section 16 of the
Deposit Agreement.
A-10
