AMENDMENT NO. 3 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 3 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 3, dated
as
of May ___, 2007 (the “Amendment”), to the Deposit Agreement dated as of July 7,
2000, as amended as of September 24, 2001 and April 18, 2005 (as further amended
hereby, the “Deposit Agreement”), among Turkcell Iletisim Hizmetleri
A.S.,
incorporated under the laws of Turkey (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; and
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 and ADRs.
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.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
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, dated
as
of July 7, 2000 as amended as of September 24, 2001 and April 18, 2005, as
further amended by this Amendment.
SECTION
2.02. Paragraph
(6) of the form of ADR is amended to read as
set
forth in Exhibit A hereto.
SECTION
2.03. Paragraph
(7) of the form of ADR is amended to read as
follows:
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), 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 ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (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
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)
a
fee of U.S.$0.02 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) to the extent not prohibited by
the
rules of the primary stock exchange upon which the ADSs are listed, a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution
and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (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
Holders entitled thereto, (iv)
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 or at one time 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 (v) 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 Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) service, transfer or registration
fees for the registration or transfer of Deposited Securities on any applicable
register and/or in connection with obtaining any necessary tax identification
numbers in Turkey in connection with the deposit or withdrawal of Deposited
Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities), (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 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). Such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary.
2
SECTION
2.04. The
form
of ADR, reflecting the amendments set forth in this Article II,
is
amended and restated to read as set forth as Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. 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, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby 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, neither
of such agreements need to be filed or recorded with any court or other
authority in Turkey.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. 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
4.02. 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
4.03. 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.
SECTION
4.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
3
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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TURKCELL
ILETISIM HIZMETLERI A.S.
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By:_____________________
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:_____________________
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Name:
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Title:
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4
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 3 TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
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No.
of ADSs:
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Number
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___________
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Each
ADS represents
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Two
and One-Half Shares
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES
of
TURKCELL
ILETISIM HIZMETLERI A.S.
(Incorporated
under the
laws
of
Turkey)
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 owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing two
and one-half shares (including the rights to receive Shares described in
paragraph (1) and any successor securities resulting from a change in the
nominal value, split-up or consolidation or any other reclassification, exchange
or conversion of such ordinary shares, "Shares" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Shares, the "Deposited Securities"), of Turkcell
Iletisim Hizmetleri A.S., a corporation organized under the laws of Turkey
(the
"Company"), deposited under the Deposit Agreement dated as of July 7, 2000
(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
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.
5
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), 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 ADRs") only if (i)
Pre-released ADRs 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 ADRs agrees in writing with the Depositary that such
recipient (a) owns such Shares, (b) assigns all beneficial right, title and
interest therein to the Depositary in its capacity as such, (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 upon demand therefor and (iii)
all
Pre-released ADRs evidence not more than 30% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
earnings on collateral for Pre-released ADRs 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 maintained by the
Custodian for such purpose at Takasbank, (y) evidence satisfactory to the
Custodian of irrevocable instructions to cause such Shares to be transferred
to
such account or (z) to the extent applicable, delivery of certificates
representing such Shares. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants 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 Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such
Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at an account maintained at Takasbank
of
the Deposited Securities at the time represented by the ADSs evidenced by this
ADR. 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 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
6
(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 relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed in the case of ADRs in certificated
form or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments 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 in whose name this ADR is registered on the ADR Register 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 duly authorized attorney
upon
surrender of this ADR at the Transfer Office properly endorsed (in the case
of
ADRs in certificated form) or upon delivery to the Depositary of 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 (after consultation with the Company to the extent
practicable in the case of a closure outside of the ordinary course of business
other than as a result of force majeure) or 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) of this ADR;
(b)
the production of proof satisfactory to it of (i) 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 any 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 issuance of ADRs, the acceptance of deposits of Shares,
the 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 advisable by the Depositary or the Company.
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(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary 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. 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 distributions 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, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution 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. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities 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
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to comply with any reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs 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 and Holders agree to comply with such instructions. 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, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
According
to relevant Turkish Capital Markets Board ("CMB") communiqué, within
the
framework
of public disclosures regarding changes in the capital structure and control
of
the
companies,
there is an obligation to inform the Istanbul Stock Exchange and the CMB of
changes in the holdings of any shareholder who owns, directly or indirectly
or
acting in concert with other real or legal persons, 5%, 10%, 15%, 20%, 25%,
33.3% (1/3), 50%, 66.7%(2/3) , 75% or more of shares or voting rights, or who
falls below such thresholds, and of changes in shareholding in any other
company in which the Company owns at least 10% of the issued share capital
or
voting rights. By holding an ADR or an interest therein, Holders and beneficial
owners of ADSs agree to abide by relevant Turkish legislation that is amended
from time to time."
8
In
addition, in the event any party or parties acting in concert acquire, directly
or indirectly 25% or more of the capital and voting rights or management control
of the Company, such party or parties are required to make an offer to the
other
shareholders to buy their Shares. Furthermore, if a party or parties acting
in
concert owning between 25 per cent. and 50 per cent. or more in any given 12
month period, such party or parties are required to make an offer to the other
shareholders to purchase their Shares. Under certain circumstances the CMB
may
grant an exemption to the above mentioned requirement or make an offer to the
shareholders. The Company hereby informs the Depositary, the custodian and
their
nominees that the aforementioned requirements do not apply to any of them acting
in any capacity under the Deposit Agreement or the form of ADR.
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), 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 ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (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
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)
a
fee of U.S.$0.02 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) to the extent not prohibited by
the
rules of the primary stock exchange upon which the ADSs are listed, a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution
and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (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
Holders entitled thereto, (iv)
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 or at one time 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 (v) 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 Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) service, transfer or registration
fees for the registration or transfer of Deposited Securities on any applicable
register and/or in connection with obtaining any necessary tax identification
numbers in Turkey in connection with the deposit or withdrawal of Deposited
Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities), (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 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). Such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary.
9
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
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, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will promptly mail copies of such 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 or facsimile signature of a duly authorized officer of the
Depositary.
|
Dated:
|
||
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
|
By
|
|
|
|
Authorized
Officer
|
||
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
10
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute as promptly as practicable 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, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's 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. (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 after
consultation with the Company if practicable representing rights to acquire
additional ADRs 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 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 the Company does not so furnish
such evidence 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 the Company does not so furnish such evidence 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 or property 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. Such U.S. dollars available 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 Cash distributions).
11
(11)
Record
Dates.
The
Depositary may, 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, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so
entitled.
(12)
Voting
of Deposited Securities.
Under
Turkish law, persons seeking to cancel their ADSs and take delivery of the
underlying Shares represented thereby may be subject to sale or transfer
restrictions during the one week period preceding a meeting at which voting
instructions will be exercised. The indirect investments of the Holders in
the
underlying Shares, or any direct investments in such Shares which may result
from the exchange of ADSs for such Shares, have not been and will not be
notified to FID by the Depositary or the Custodian. The Depositary is under
no
obligation to monitor investments in Shares for the purpose of notifying the
FID, to effect such notification to the FID or take any other action with
respect to the FID. There can be no assurance that the Depositary will be able
to vote the Shares deposited with it in accordance with the instructions of
the
Holders. Subject to the foregoing, 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
Holders a notice stating (a) such information as is contained in such notice
and
any solicitation materials, (b) that each Holder 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 ADSs evidenced by such Holder's ADRs and (c) the manner
in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated 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 the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, 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; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) 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; (d) 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 (e) 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 any other person believed by it 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 document believed by them 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. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof.
12
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
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. The Depositary may appoint substitute or additional Custodians
and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (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 the 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 may, and 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. 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 receive and hold (or sell) distributions on Deposited Securities and
deliver Deposited Securities being withdrawn. 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.
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.
13
