Exhibit (a)
JSC SURGUTNEFTEGAZ
AND
THE BANK OF NEW YORK,
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of December 30, 1996
TABLE OF CONTENTS
Page
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE 1. DEFINITIONS
SECTION 1.01 American Depositary Shares......................................1
SECTION 1.02 Beneficial Owner................................................1
SECTION 1.03 Business Day....................................................1
SECTION 1.04 Commission......................................................1
SECTION 1.05 Company.........................................................1
SECTION 1.06 Custodian.......................................................2
SECTION 1.07 Deposit Agreement...............................................2
SECTION 1.08 Depositary; Corporate Trust Office..............................2
SECTION 1.09 Deposited Securities............................................2
SECTION 1.10 Dollars; Rubles.................................................2
SECTION 1.11 Owner...........................................................2
SECTION 1.12 Receipts........................................................2
SECTION 1.13 Registrar.......................................................2
SECTION 1.14 Restricted Securities...........................................2
SECTION 1.15 Russian Share Registrar.........................................3
SECTION 1.16 Securities Act of 1933..........................................3
SECTION 1.17 Securities Exchange Act of 1934.................................3
SECTION 1.18 Share Register..................................................3
SECTION 1.19 Shares..........................................................3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts............................3
SECTION 2.02 Deposit of Shares...............................................4
SECTION 2.03 Execution and Delivery of Receipts..............................5
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts......5
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares..................6
SECTION 2.06 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts...........................................7
SECTION 2.07 Lost Receipts, etc..............................................7
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts............8
SECTION 2.09 Pre-Release of Receipts.........................................8
SECTION 2.10 Maintenance of Records..........................................8
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information...............8
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes................9
SECTION 3.03 Warranties on Deposit of Shares.................................9
SECTION 3.04 Disclosure of Interests.........................................9
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.............................................10
SECTION 4.02 Distributions Other Than Cash, Shares or Rights................10
SECTION 4.03 Distributions in Shares........................................11
SECTION 4.04 Rights.........................................................11
SECTION 4.05 Conversion of Foreign Currency.................................12
SECTION 4.06 Fixing of Record Date..........................................13
SECTION 4.07 Voting of Deposited Securities.................................13
SECTION 4.08 Changes Affecting Deposited Securities.........................14
SECTION 4.09 Reports........................................................14
SECTION 4.10 Lists of Owners................................................15
SECTION 4.11 Withholding....................................................15
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.....15
SECTION 5.02 Prevention or Delay in Performance by the Depositary or
the Company....................................................16
SECTION 5.03 Obligations of the Depositary, the Custodian and the
Company........................................................16
SECTION 5.04 Resignation and Removal of the Depositary......................17
SECTION 5.05 The Custodian..................................................18
SECTION 5.06 Notices and Reports............................................18
SECTION 5.07 Distribution of Additional Shares, Rights, etc.................18
SECTION 5.08 Indemnification................................................19
SECTION 5.09 Charges of Depositary..........................................20
SECTION 5.10 Retention of Depositary Documents..............................20
SECTION 5.11 Exclusivity....................................................20
SECTION 5.12 List of Restricted Securities Owners...........................20
SECTION 5.13 Registration of Shares; Russian Share Registrar;
Share Register.................................................21
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment......................................................22
SECTION 6.02 Termination....................................................23
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts...................................................23
SECTION 7.02 No Third Party Beneficiaries...................................23
SECTION 7.03 Severability...................................................24
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect........24
SECTION 7.05 Notices........................................................24
SECTION 7.06 Arbitration; Settlement of Disputes............................24
SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for
Service of Process.............................................25
SECTION 7.08 Waiver of Immunities...........................................25
SECTION 7.09 Governing Law..................................................26
SECTION 7.10 Assignment.....................................................26
EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of December 30, 1996 among JSC SURGUTNEFTEGAZ,
incorporated under the laws of the Russian Federation (herein called the
"Company"), THE BANK OF NEW YORK, a New York banking corporation, as depositary,
and all Owners and Beneficial Owners from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary (as hereinafter defined) or with
the Custodian (as hereinafter defined) as agent of the Depositary for the
purposes set forth in this Deposit Agreement, for the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing the American Depositary
Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between
the parties hereto as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares.
The term "American Depositary Shares" shall mean the securities representing the
interests in the Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent fifty (50) Shares,
until there shall occur a distribution upon Deposited Securities covered by
Section 4.03 or a change in Deposited Securities covered by Section 4.08 with
respect to which additional Receipts are not executed and delivered, and
thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.02. Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to time any
beneficial interest in the American Depositary Shares evidenced by any Receipt.
SECTION 1.03. Business Day.
The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not (a) a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close and (b) a day on which the market(s) in which Receipts are traded
are closed.
SECTION 1.04. Commission.
The term "Commission" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
SECTION 1.05. Company.
The term "Company" shall mean JSC Surgutneftegaz, incorporated under the laws of
the Russian Federation, and its successors.
SECTION 1.06. Custodian.
The term "Custodian" shall mean the Moscow, Russian Federation, office of ING
Eurasia, as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.05, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.07. Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.08. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, The Bank of New York International Nominees, a New York
partnership, as nominee of The Bank of New York in whose name Shares are
registered pursuant to this Deposit Agreement, and any successor as depositary
hereunder. The term "Corporate Trust Office", when used with respect to the
Depositary, shall mean the office of the Depositary which at the date of this
Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09. Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such time
deposited or deemed to be deposited under this Deposit Agreement and any and all
other securities, property and cash received by the Depositary or
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the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.05.
SECTION 1.10. Dollars; Rubles.
The terms "Dollars" or "U.S.$" shall mean United States dollars. The terms
"Rubles" or "R" shall mean the national currency of the Russian Federation.
SECTION 1.11. Owner.
The term "Owner" shall mean the person in whose name a Receipt is registered on
the books of the Depositary maintained for such purpose.
SECTION 1.12. Receipts.
The term "Receipts" shall mean the American Depositary Receipts, issued
hereunder, in substantially the form of Exhibit A hereto, evidencing American
Depositary Shares, as the same may be amended from time to time in accordance
with the provisions hereof. When used with respect to Receipts the term
"outstanding" shall mean, as of the date of determination, all Receipts executed
and delivered under this Deposit Agreement except (i) Receipts surrendered to
the Depositary and cancelled by it and (ii) Receipts in exchange for or in lieu
of which other Receipts have been executed and delivered pursuant to this
Deposit Agreement.
SECTION 1.13. Registrar.
The term "Registrar" shall mean any bank or trust company having an office in
the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.14. Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts representing
such Shares, which are acquired directly or indirectly from the Company or its
affiliates (as defined in Rule 144 to the Securities Act of 1933), or which are
held by an officer, director (or persons performing similar functions) or other
affiliate of the Company, or which would require registration under the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States or the Russian Federation, or under a shareholder
agreement or the Charter of the Company.
SECTION 1.15. Russian Share Registrar.
The term "Russian Share Registrar" shall mean the entity that maintains the
Share Register for the Shares which may, but need not be, the Company, or any
successor thereto and any other appointed agent of the Company for the transfer
and registration of Shares.
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SECTION 1.16. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities Act of
1933, as from time to time amended.
SECTION 1.17. Securities Exchange Act of 1934.
The term "Securities Exchange Act of 1934" shall mean the United States
Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.18. Share Register.
The term "Share Register" shall mean the shareholder register maintained by the
Russian Share Registrar in which ownership of the Shares is registered.
SECTION 1.19. Shares.
The term "Shares" shall mean ordinary shares in registered form of the Company,
nominal value 1,000 Rubles each, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
(a) Definitive Receipts shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Receipts may
be issued in denominations of any number of American Depositary Shares. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose, unless such Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however, that such signature may be a
facsimile if a Registrar for the Receipts shall have been appointed and such
Receipts are countersigned by the manual signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
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Each Receipt shall bear the following legend:
IT IS EXPECTED THAT SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE
SHARE REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR IN THE NAME OF
THE DEPOSITARY OR ITS NOMINEE OR OF THE CUSTODIAN OR ITS NOMINEE. OWNERS
AND BENEFICIAL OWNERS SHOULD BE AWARE, HOWEVER, THAT RUSSIA'S SYSTEM OF
SHARE REGISTRATION AND CUSTODY CREATES CERTAIN RISKS OF LOSS THAT ARE NOT
NORMALLY ASSOCIATED WITH INVESTMENTS IN OTHER SECURITIES MARKETS. THE
DEPOSITARY WILL NOT BE LIABLE FOR THE UNAVAILABILITY OF SHARES OR FOR THE
FAILURE TO MAKE ANY DISTRIBUTION OF CASH OR PROPERTY WITH RESPECT THERETO
AS A RESULT OF SUCH UNAVAILABILITY.
THE DEPOSITARY HAS BEEN ADVISED BY RUSSIAN COUNSEL THAT COURTS IN THE
RUSSIAN FEDERATION WILL NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN
THE NEW YORK COURTS.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
(b) Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
that the Depositary and the Company, notwithstanding any notice to the contrary,
may treat the Owner thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes and neither the Depositary nor the Company will have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of a Receipt, unless such holder is the Owner thereof.
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SECTION 2.02. Deposit of Shares.
(a) Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer which will consist of (a) extracts from the Share
Register and, where applicable, share certificates evidencing ownership of the
Shares, (b) a transfer deed or other similar document authorizing registration
of the Shares in the name of the Depositary, the Custodian or their respective
nominees, or endorsement, in form satisfactory to the Custodian, and (c) where
applicable a purchase/sale contract or other similar document relating to the
transfer of the Shares, in each case together with all such certifications as
may be required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement, and, if the Depositary requires, together
with a written order directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order, a Receipt or
Receipts for the number of American Depositary Shares representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that (i) all conditions to such deposit have been
satisfied by the person depositing such Shares under Russian laws and
regulations, (ii) any necessary approval has been granted by any governmental
body in the Russian Federation which is then performing the function of the
regulation of currency exchange and (iii) all applicable taxes and governmental
charges and the fees and expenses of the Depositary, as provided in Section 5.09
hereof, have been paid.
If required by the Depositary, Shares presented for deposit at any time, whether
or not the Share Register is closed, shall also be accompanied by an agreement
or assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
Upon each delivery to a Custodian of a certificate or certificates for, or other
documents evidencing title to (including extracts from the Share Register
evidencing ownership of the Shares by each person presenting Shares for deposit
hereunder), Shares to be deposited hereunder, together with the other documents
above specified, such Custodian or its agents, promptly after receipt of
evidence that such transfer and recordation have been accomplished,
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shall present such certificate or certificates or other documents as above
specified to the Russian Share Registrar for transfer and recordation of the
Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee, and the Company shall ensure that such transfer and
recordation is promptly effected.
(b) Records of ownership of Deposited Securities (including
extracts from the Share Register) shall be held by the Depositary or by a
Custodian for; the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine. The Depositary agrees to
instruct the Custodian to place all Shares accepted for deposit under this
Deposit Agreement into segregated accounts separate from any Shares of the
Company that may be held by such Custodian under any other depositary receipt
facility relating to the Shares.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder
and upon receipt in form satisfactory to the Depositary of a proper
acknowledgment or other evidence from the Company or the Russian Share Registrar
(including extracts from the Share Register) that any Deposited Securities have
been recorded on the Share Register maintained by the Russian Share Registrar in
the name of the Depositary or its nominee or such Custodian or its nominee,
together with the other documents required as above specified, such Custodian
shall notify the Depositary of such deposit and the person or persons to whom or
upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced thereby.
Such notification shall be made by letter or, at the request, risk and expense
of the person making the deposit, by cable, telex or facsimile transmission.
Upon receiving such notice from such Custodian, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall, as promptly as
practicable, execute and deliver at its Corporate Trust Office, to or upon the
order of the person or persons entitled thereto, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees and expenses, (a) of the Depositary for the execution
and delivery of such Receipt or Receipts as provided in Section 5.09, and of all
taxes and governmental charges and-fees payable in connection with such deposit
and the transfer of the Deposited Securities and (b) subject to the other terms
of this Deposit Agreement and the provisions of the Charter of the Company and
of the Deposited Securities. The Depositary shall not issue Receipts except in
accordance with this Section 2.03 and Sections 2.04, 2.07, 2.09, 4.03, 4.04 and
4.08 hereof.
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SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit Agreement,
shall without unreasonable delay register transfers of Receipts on its transfer
books from time to time, upon any surrender of a Receipt, by the Owner in person
or by a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts evidencing the same aggregate number of
American Depositary Shares and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit Agreement,
shall upon surrender of a Receipt or Receipts for the purpose of effecting a
split-up or combination of such Receipt or Receipts, execute and deliver a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
The Depositary may, after consultation with the Company to the extent
practicable, appoint one or more cotransfer agents reasonably acceptable to the
Company for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. Each
co-transfer agent appointed under this Section 2.04 shall notify in writing the
Company and the Depositary that it accepts its appointment as co-transfer agent
and agrees to be bound by the applicable terms of this Deposit Agreement. In
carrying out its functions, a cotransfer agent may require evidence of authority
and compliance with applicable laws and other requirements by Owners or persons
entitled to Receipts and will be entitled to protection and indemnity to the
same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a Receipt for
the purpose of withdrawal of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, accompanied by such
documents as the Depositary may require (including a purchase/sale contract
relating to the transfer of the Shares) and upon payment of the fee of the
Depositary for the surrender of Receipts as provided in Section 5.09 and payment
of all taxes and governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
8
conditions of this Deposit Agreement, the Charter of the Company and the
Deposited Securities, the Owner of such Receipt shall be entitled to delivery,
to him or upon his order, of the amount of Deposited Securities at the time
represented by the American Depositary Shares evidenced by such Receipt.
Delivery of such Deposited Securities may be made by the delivery of (a)
certificates or other documents evidencing title (including extracts from the
Share Register) in the name of such Owner or as ordered by him, or certificates
properly endorsed or accompanied by proper instruments of transfer to such Owner
or as ordered by him and (b) any other securities, property and cash to which
such Owner is then entitled in respect of such Receipts to such Owner or as
ordered by him. Such delivery shall be made as promptly as practicable, as
hereinafter provided.
A Receipt surrendered for such purposes may be required by the Depositary to be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Owner thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon the Depositary
shall direct the Custodian or its agents to cause the transfer and recordation
by the Russian Share Registrar on the Share Register of the Shares being
withdrawn in the name of such Owner or as directed by him as above provided, and
the Company shall ensure that such transfer and recordation is effected within
72 hours (or as soon thereafter as possible) of the Russian Share Registrar's
receipt of such documentation as may be required by applicable law and the
reasonable and customary regulations of the Russian Share Registrar. Upon such
transfer and recordation, the Custodian shall deliver at the Moscow, Russian
Federation, office of such Custodian, subject to Sections 2.06, 3.01 and 3.02
and to the other terms and conditions of this Deposit Agreement, to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as above provided, documents evidencing title (including extracts
from the Share Register) for the amount of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, except that, if and to
the extent practicable, the Depositary may make delivery to such person or
persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt, and for
the account of such Owner,
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the Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and
other proper documents evidencing title for, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
Neither the Depositary nor any Custodian shall deliver Shares (other than to the
Company or its agent as contemplated by Section 4.08), or otherwise permit
Shares to be withdrawn from the facility created hereby, except upon the receipt
and cancellation of Receipts.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and expenses as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with such reasonable regulations as the Depositary
may establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.06.
The delivery of Receipts against deposit of Shares generally or against deposit
of particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of the following sentence. Notwithstanding
anything to the contrary in this Deposit Agreement, the surrender of outstanding
Receipts and withdrawal of Deposited Securities may not be suspended subject
only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting, or the payment of dividends, (ii) the
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payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares.
The Depositary will comply with written instructions of the Company that the
Depositary shall not accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with the securities laws of the United States.
SECTION 2.07. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled, subject to
Section 2.10.
SECTION 2.09. Pre-Release of Receipts.
The Depositary may issue Receipts against rights to receive Shares from the
Company. No such issue of Receipts shall be deemed a "Pre-Release" subject to
the restrictions of the following paragraph.
Unless requested by the Company to cease doing so, notwithstanding Section 2.03
hereof, the Depositary may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.02 (a "Pre-Release"). The Depositary may, pursuant
to Section 2.05, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that
11
such Receipt has been Pre-Released. The Depositary may receive Receipts in lieu
of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the person to whom
Receipts or Shares are to be delivered (the "PreReleasee"), that the
Pre-Releasee, or its customer, owns the Shares or Receipts to be remitted, as
the case may be, (b) at all times fully collateralized (such collateral marked
to market daily) with cash or such other collateral as the Depositary reasonably
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate and may, with the prior
written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case by case basis as it deems appropriate. The collateral
referred to in clause (b) above shall be held by the Depositary for the benefit
of the Owners as security for the performance of the obligations to deliver
Shares set forth in clause (a) above (and shall not, for the avoidance of doubt,
constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by it in
connection with the foregoing. The Company shall have no liability to any Owner
with respect to any representations, actions or omissions by the Depositary, and
holder of Receipts, or any Owner or any of their respective agents pursuant to
this Section 2.09.
SECTION 2.10. Maintenance of Records.
The Depositary agrees to maintain or cause its agents to maintain records of all
Receipts surrendered and Deposited Securities withdrawn under Section 2.05,
substitute Receipts delivered under Section 2.07, and of cancelled or destroyed
Receipts under Section 2.08, in keeping with procedures ordinarily followed by
stock transfer agents located in The City of New York or as required by the laws
or regulations governing the Depositary. Prior to destroying any such records,
the Depositary will notify the Company and will turn such records over to the
Company upon its request.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
12
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
evidence of payment of applicable taxes and other governmental charges, or such
information relating to the registration on the books of the Russian Share
Registrar, to execute such certificates and to make such representations and
warranties, as the Depositary, or the Company, upon written notice to the
Depositary, may deem necessary or proper. The Depositary may, and at the
reasonable written request of the Company shall, withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof, evidence or other information is filed or
such certificates are executed or such representations and warranties made to
the satisfaction of the Depositary and the Company. The Depositary shall from
time to time on request of the Company advise the Company of the availability of
any such proofs, certificates or other information and shall provide copies
thereof to the Company as promptly as practicable upon request by the Company,
unless such disclosure is prohibited by law. Each Owner and Beneficial Owner
agrees to provide any information requested by the Company or the Depositary
pursuant to this paragraph.
SECTION 3.02. Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the Custodian or
the Depositary with respect to any Receipt or any Deposited Securities
represented by any Receipt, such tax or other governmental charge shall be
payable by the Owner or Beneficial Owner of such Receipt to the Depositary, and
such Owner or Beneficial Owner shall be deemed liable therefor. In addition to
any other remedies available to it, the Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Owner or Beneficial Owner thereof any part or all of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
and the Owner or Beneficial Owner of such Receipt shall remain liable for any
deficiency. The obligations of Owners and Beneficial Owners under this Section
3.02 shall survive any transfer of Receipts pursuant to Section 2.04, any
surrender of Receipts
13
and withdrawal of Deposited Securities pursuant to Section 2.05, or the
termination of this Deposit Agreement pursuant to Section 6.02.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any preemptive rights
of the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that such Shares and the Receipts evidencing American Depositary Shares
representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
SECTION 3.04. Disclosure of Interests.
The Company or the Depositary may from time to time request Owners to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously having a
beneficial interest in such Receipts and the nature of such interest and various
other matters. Each Owner agrees to provide any information requested by the
Company or the Depositary pursuant to this Section 3.04. The Depositary agrees
to comply with reasonable written instructions received from time to time from
the Company requesting that the Depositary forward any such requests to the
Owners and to forward to the Company any such responses to such requests
received by the Depositary. To the extent that provisions of or governing any
Deposited Securities (including the Company's Charter or applicable law) may
require the disclosure of beneficial or other ownership of Deposited Securities,
other Shares and other securities to the Company and may provide for blocking
transfer and voting or other rights to enforce such disclosure or limit such
ownership, the Depositary shall use its best efforts that are reasonable under
the circumstances to comply with Company instructions as to Receipts in respect
of any such enforcement or limitation, and Owners and Beneficial Owners shall
comply with all such disclosure requirements and ownership limitations and shall
cooperate with the Depositary's compliance with such Company instructions.
ARTICLE 4 THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, as promptly as
practicable after its receipt of such dividend or distribution (unless
14
otherwise prohibited or prevented by applicable law), subject to the provisions
of Section 4.05, convert such dividend or distribution into Dollars and, after
fixing a record date in respect thereof pursuant to Section 4.06, shall, as
promptly as practicable, distribute the amount thus received (net of the fees
and expenses of the Depositary as provided in Section 5.09) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company or the Depositary shall be required
to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the appropriate governmental agency in
the Russian Federation all amounts withheld and owing to such agency. In the
event that the Depositary withholds any such amounts, the Depositary will remit
to the appropriate governmental agency in the United States all amounts withheld
and owing to such agency. The Depositary will forward to the Company or its
agent such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
agencies, and the Depositary or the Company or its agent may file any such
reports necessary to obtain benefits under the applicable tax treaties for the
Owners of Receipts.
SECTION 4.02. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Depositary
shall receive any distribution other than a distribution described in Sections
4.01, a o3 or 4.04, the Depositary shall, as promptly as practicable, cause the
securities or property received by it to be distributed to the Owners entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may reasonably deem
equitable and practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Depositary such distribution cannot be
made proportionately among the Owners entitled thereto, or if for any other
reason (including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be
15
registered under the Securities Act of 1933 in order to be distributed to Owners
or Beneficial Owners) the Depositary reasonably deems such distribution not to
be feasible, the Depositary may, after consultation with the Company to the
extent practicable, adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto, all in the manner and subject to
the conditions described in Section 4.01; provided, however, that no
distribution to Owners pursuant to this Section 4.02 shall be unreasonably
delayed by any action of the Depositary or any of its agents.
SECTION 4.03. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Depositary may, and shall, if the Company
shall so request, distribute, as promptly as practicable, to the Owners of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.09. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01; provided, however, that no distribution to Owners pursuant to this Section
4.03 shall be unreasonably delayed by any action of the Depositary or any of its
agents. If additional-Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be offered to the holders
of any Deposited Securities any
16
rights to subscribe for additional Shares or any
rights of any other nature, the Depositary, after consultation with the Company
to the extent practicable, shall have discretion as to the procedure to be
followed in making such rights -available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines that it is lawful and feasible to make such
rights available to all or certain Owners but not to other Owners, the
Depositary may, and at the request of the Company shall, distribute to any Owner
to whom it determines the distribution to be lawful and feasible, in proportion
to the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner
of Receipts requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will promptly make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to
all or certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
17
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines, after consultation with the Company to the extent
practicable, that it is not lawful and feasible to make such rights available to
all or certain Owners, it may, and at the request of the Company shall use its
best efforts that are reasonable under the circumstances to, sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and will allocate the net proceeds of such
sales (net of the fees and expenses of the Depositary as provided in Section
5.09 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise. Such proceeds shall be distributed as
promptly as practicable in accordance with Section 4.01 hereof.
The Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act of 1933 with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that it may
be lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of dividends or
other distributions or the net proceeds from the sale of securities, property or
rights, into the Depositary's foreign investment account in the Russian
Federation, and if at the time of the receipt
18
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, as promptly as practicable, by sale or in any other manner that it
may determine, in accordance with applicable law, such foreign currency into
Dollars, and such Dollars shall be distributed as promptly as practicable to the
Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file, as
promptly as practicable, such application for approval or license; however, the
Depositary shall be entitled to rely on local Russian counsel in such matters,
which counsel shall be instructed to act as promptly as practicable.
If at any time any foreign currency received by the Depositary or the Custodian
is not, pursuant to applicable law, convertible in whole or in part into Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary cannot be promptly obtained, or if any such
approval or license is not promptly obtained, the Depositary shall, (a) as to
that portion of the foreign currency that is convertible into Dollars, make such
conversion and if permitted by applicable law, transfer such Dollars to the
United States for distribution in accordance with the first paragraph of this
Section 4.05 and (b) as to the nonconvertible balance, if any, (i) if requested
in writing by an Owner, distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to such Owner and (ii) if not so requested by an Owner, hold such
foreign currency uninvested and without liability for interest thereon for
the.respective accounts of the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in
19
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners.
SECTION 4.06. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable or
any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be, or be as close as possible to, the
record date applicable to the relevant Deposited Securities (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, (b)
on or after which each American Depositary Share will represent the changed
number of Shares or (c) for the determination of the Owners who shall be
responsible for the fee assessed by the Depositary pursuant to Section 5.09
hereof for inspection of the Share Register maintained by the Russian Share
Registrar. Subject to the provisions of Sections 4.01 through 4.05 and to the
other terms and conditions of this Deposit Agreement, the Owners on such record
date shall be entitled, as the case may be, to receive the amount distributable
by the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a notice, in such form as
approved by the Company to the extent practicable, which shall contain (a) such
information as is contained in such notice of meeting received by the Depositary
from the Company (or if requested by the Company, a summary of such information
provided by the Company), (b) a statement that the Owners as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of the law of the Russian Federation and of the Charter of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of
20
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of an Owner of a Receipt on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided
that no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
The Depositary shall if requested in writing by the Company deliver, at least
two Business Days prior to the date of such meeting, to the Company, to the
attention of its Secretary, copies of all instructions received from Owners in
accordance with which the Depositary will vote, or cause to be voted, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipts at such meeting. Delivery of instructions will be made at the
expense of the Company (unless otherwise agreed in writing by the Company and
the Depositary) provided that payment of such expense shall not be a condition
precedent to the obligations of the Depositary under this Section.
SECTION 4.08. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply, upon any
change in nominal value, change in par value, split-up, consolidation or any
other
21
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, in its reasonable discretion, after consultation with the
Company to the extent practicable, and shall, if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities. Promptly upon
receipt of notice from the Company pursuant to Section 5.06 of the occurrence of
any of the events referred to in the first sentence of this Section, the
Depositary shall give notice thereof to all Owners.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Owners at its Corporate
Trust Office any reports and communications, including any proxy soliciting
material, received from the Company which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to the Owners (i) copies of such reports when
furnished by the Company pursuant to Section 5.06, (ii) copies of any written
communications provided to the Depositary by the Russian Share Registrar
pursuant to Section 5.13(b)(v); and (iii) copies of any notices given or
required to be given by the Depositary pursuant to Section 5.13(d). Any such
reports and communications, including any such proxy soliciting material,
furnished to the Depositary by the Company shall be furnished in English, to the
extent such materials are required to be translated into English pursuant to any
regulations of the Commission. Any such communications furnished to the
Depositary by the Russian Share Registrar shall be furnished in English.
SECTION 4.10. Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense of
the Company, furnish to it a list, as of a recent date, of the names, addresses
and holdings of American Depositary Shares by all persons in whose-names
Receipts are registered on the books of the Depositary.
22
SECTION 4.11. Withholding.
In connection with any distribution to Owners, the Company shall remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld by the Company and owing to such authority or agency by the Company;
and the Depositary and the Custodian shall remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. In the event that
the Depositary determines that any distribution in property (including Shares
and rights to subscribe therefor) or any deposit of Shares, transfer of Receipts
or withdrawal of Deposited Securities hereunder is subject to any tax or other
governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively. The Depositary shall forward to the Company such information from
its records as the Company may request to enable the Company to file necessary
reports with governmental authorities or agencies, and either the Company or the
Depositary may file any such reports necessary to obtain benefits under any
applicable tax treaties for Owners.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company, including, without
limitation, a matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, after consultation with the Company
to the extent practicable, at
23
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder or at the request of the Company,
provided that any such closing of the transfer books shall be subject to the
provisions of Section 2.06 which limit the suspension of withdrawals of Shares,
and, provided further, that the Depositary shall provide the Company with
written notice promptly after any such closure which occurs on a Business Day.
If any Receipts or the American Depositary Shares evidenced thereby are listed
on one or more stock exchanges in the United States, the Depositary shall act as
Registrar or, upon the request or with the written approval of the Company,
appoint a Registrar or one or more co-registrars for registry of such Receipts
in accordance with any requirements of such exchange or exchanges. Any such
Registrar or co-registrars shall, upon the Company's request, and may, with the
approval of the Company, be removed and a substitute or substitutes appointed by
the Depositary.
The Company shall have the right, upon reasonable request, to inspect the
transfer and registration records of the Depositary relating to the Receipts, to
take copies thereof and to require the Depositary and any co-registrars to
supply copies of such portions of such records as the Company may request.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective directors,
employees, agents or affiliates shall incur any liability to any Owner or
Beneficial Owner of any Receipt, if by reason of (a) any provision of any
present or future law or regulation of the United States, the Russian Federation
or any other country, or of any governmental or regulatory authority or stock
exchange, or by reason of any act of God or war or other circumstances beyond
its control, or (b) in the case of the Depositary only, (i) any act or failure
to act of the Company or its agents, including the Russian Share Registrar, or
their respective directors, employees, agents or affiliates, (ii) any provision,
present or future, of the Charter of the Company or any other instrument of the
Company governing the Deposited Securities, or (iii) any provision of any
securities issued or distributed by the Company, or any offering or distribution
thereof, the Depositary or the Company shall be prevented, delayed or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of this Deposit Agreement or
Deposited Securities it is provided shall be done or performed (including, in
the case of the Depositary, delivery of any Deposited Securities or
24
distribution of cash or property in respect thereof pursuant to Sections 4.01
through 4.04); nor shall the Depositary or the Company or any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or Beneficial Owner of any Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement or in the Charter of the
Company. Where, by the terms of a distribution pursuant to Section 4.01, 4.02,
or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 of the Deposit Agreement, or for any other reason, the Depositary
is prevented or prohibited from making such distribution or offering available
to Owners, and the Depositary is prevented or prohibited from disposing of such
distribution or offering on behalf of such Owners and making the net proceeds
available to such Owners, then the Depositary, after consultation with the
Company to the extent practicable, shall not make such distribution or offering,
and shall allow any rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability under
this Deposit Agreement to Owners or Beneficial Owners, except that it agrees to
perform its obligations specifically set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to any Owner or Beneficial Owner (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
inaction by it in reliance upon the
25
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or any other person believed by it in good faith
to be competent to give such advice or information; provided, however, that in
the case of the Company, advice of or information from legal counsel is from
recognized U.S. counsel for U.S. legal issues, recognized Russian legal counsel
for Russian legal issues and recognized counsel from any other jurisdiction for
legal issues with respect to that jurisdiction.
The Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or inaction is in good faith.
The Depositary shall not be liable to the Company, any Owner or Beneficial Owner
or any other person for the unavailability of Deposited Securities or for the
failure to make any distribution of cash or property with respect thereto as a
result of (i) any act or failure to act of the Company or its agents, including
the Russian Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision of any present or future law or regulation of the
United States, the Russian Federation or any other country, (iii) any provision
of any present or future regulation of any governmental or regulatory authority
or stock exchange, (iv) any provision of any present or future Charter of the
Company or any other instrument of the Company governing the Deposited
Securities, (v) any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or (vi) any act of God or war
or other circumstance beyond its control.
The Company shall not be liable to the Depositary, any Owner or Beneficial Owner
or any other person for the unavailability of the Deposited Securities or for
the failure to make any distribution of cash or property with respect thereto as
a result of (i) any provision of any present or future law or regulation of the
United States, the Russian Federation or any other country, (ii) any provision
of any present or future regulation of any governmental or regulatory authority
or stock exchange or
26
(iii) any act of God or war or other circumstance beyond its control.
No disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written notice
of its election so to do delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice of
such removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall use its best efforts that are reasonable under the
circumstances to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Every successor depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Company shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION 5.05. The Custodian.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it, and the
Depositary shall be responsible for the compliance by the Custodian with the
applicable provisions of this Deposit Agreement. The Custodian may resign and be
discharged from its duties hereunder by notice of such resignation delivered to
the
27
Depositary at least 30 days prior to the date on which such resignation is to
become effective. If upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian or custodians approved by the Company (such approval not to
be unreasonably withheld), each of which shall thereafter be a Custodian
hereunder. Whenever the Depositary in its discretion determines that it is in
the best interest of the Owners to do so, it may appoint a substitute or
additional custodian or custodians, each of which shall thereafter be one of the
Custodians hereunder. The Depositary shall notify the Company of the appointment
of a substitute or additional Custodian at least 30 days prior to the date on
which such appointment is to become effective. Upon demand of the Depositary the
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary. Promptly after
any such change, the Depositary shall give notice thereof in writing to all
Owners.
Upon the appointment of any successor depositary hereunder, each Custodian then
acting hereunder shall forthwith become, without any further act or writing, the
agent hereunder of such successor depositary and the appointment of such
successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities, or
of any adjourned meeting of such holders, or of the taking of any action in
respect of any cash or other distributions or the offering of any rights, the
Company agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any regulations of the Commission,
and the prompt transmittal by the Company to the Depositary and the Custodian of
such notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing
28
by the Company, the Depositary will arrange for the mailing, as promptly as
practicable and at the Company's expense, of copies of such notices, reports and
communications to all Owners. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.07. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Company, which counsel shall be reasonably
satisfactory to the Depositary, stating whether or not the Distribution requires
a Registration Statement under the Securities Act of 1933 to be in effect prior
to making such Distribution available to Owners entitled thereto. If in the
opinion of such counsel a Registration Statement is required, such counsel shall
furnish to the Depositary a written opinion as to whether or not there is a
Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit, and shall use its best
efforts that are reasonable under the circumstances to ensure that no company
controlling or under common control with the Company will at any time deposit,
any Shares, either originally issued or previously issued and reacquired by the
Company or any such affiliate, unless a Registration Statement is in effect as
to such Shares under the Securities Act of 1933 or the Company furnishes to the
Depositary a written opinion from U.S. counsel for the Company stating that the
offer and sale of the Receipts evidencing the American Depositary Shares
representing such Shares are exempt from registration under that Act.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary, any Custodian, and their
respective directors, employees, agents and affiliates against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of (a) any acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense
29
arising out of the negligence or bad faith of either of them, or (ii) by the
Company or any of its directors, employees, agents and affiliates or (b) the
unavailability of Deposited Securities or the failure to make any distribution
of cash or property with respect thereto as a result of (i) any act or failure
to act of the Company or its agents, including the Russian Share Registrar, or
their respective directors, employees, agents or affiliates, (ii) any provision
of any present or future Charter of the Company or any other instrument of the
Company governing Deposited Securities or (iii) any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof.
The indemnities contained in this paragraph shall not extend to any liability or
expense which may arise out of any Pre-Release (as defined in Section 2.09) of a
Receipt or Receipts in accordance with Section 2.09 and which would not
otherwise have arisen had such Receipt or Receipts not been the subject of a
PreRelease pursuant to Section 2.09; provided, however, that the indemnities
provided in this paragraph shall apply to any liability or expense to the extent
that such liability or expense would have arisen had a Receipt or Receipts not
been the subject of a Pre-Release.
The Depositary agrees to indemnify the Company, its directors, employees, agents
and affiliates and hold them harmless from any liability or expense which may
arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due to their
negligence or bad faith.
The obligations set forth in this Section 5.08 shall survive the termination of
this Deposit Agreement and the succession or substitution of any indemnified
person.
Any person seeking indemnification hereunder (an "Indemnified Person") shall
notify the person from whom it is seeking indemnification (the "Indemnifying
Person") of the commencement of any indemnifiable action or claim promptly after
such Indemnified Person becomes aware of such commencement and shall consult in
good faith with the Indemnifying Person as to the conduct of the defense of such
action or claim, which defense shall be reasonable under the circumstances. No
Indemnified Person shall compromise or settle any such action or claim without
the consent in writing of the Indemnifying Person.
SECTION 5.09. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present detailed statements for such charges
and expenses to the Company once
30
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing
Shares, by any Owner of Receipts or by any party surrendering Receipts or to
whom Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.03), whichever applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
Register of the Company maintained by the Russian Share Registrar and applicable
to transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee on the making of deposits or withdrawals hereunder, (3)
such cable, telex and facsimile transmission expenses as are expressly provided
in this Deposit Agreement, (4) such expenses as are incurred by the Depositary
in the conversion of foreign currency pursuant to Section 4.05, (5) a fee of
$5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.01 through 4.04 hereof, (7) a fee of $.01 or less per American
Depositary Share (or portion thereof) per year to cover such expenses as are
incurred for inspections by the Depositary, the Custodian or their respective
agents of the Share Register maintained by the Russian Share Registrar (Such fee
shall be assessed against Owners of record as of the date or dates set by the
Depositary in accordance with Section 4.06 and shall be collected at the sole
discretion of the Depositary by billing such Owners for such fee or by deducting
such fee from one or more cash dividends or other cash distributions.), (8) a
fee for the distribution of securities pursuant to Section 4.02, such fee being
in an amount equal to the fee for the execution and delivery of American
Depositary Shares referred to above which would have been charged as a result of
the deposit of such securities (for purposes of this clause 8 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Owners and (9) a fee not in excess of $1.50 per certificate
for a Receipt or Receipts for transfers made pursuant to the terms of the
Deposit Agreement.
The Depositary, subject to Section 2.09 hereof, may own and deal, in accordance
with applicable law, in any
31
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and
other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for issuance of American
Depositary Receipts so long as The Bank of New York is acting as Depositary
hereunder, subject, however, to the rights of the Company under Section 5.04.
SECTION 5.12. List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list setting
forth, to the actual knowledge of the Company, those persons or entities who
beneficially own Restricted Securities and the Company shall update that list on
a regular basis. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon.
SECTION 5.13. Registration of Shares; Russian Share Registrar; Share Register.
(a) The Company agrees to designate and appoint Closed Joint Stock
Company Surgut Investneft in the Russian Federation, as its Russian Share
Registrar in respect of the Shares and Deposited Securities. The Company further
agrees to take any and all action, including the filing of any and all documents
and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any American Depositary
Shares or Receipts remain outstanding or this Deposit Agreement remains in
force; provided, however, that the Company may appoint a substitute Russian
Share Registrar upon thirty (30) days written notice to the Depositary and the
Owners in accordance with Section 7.05 and any such substitution shall not be
deemed an amendment of this Deposit Agreement or the Receipts and shall not be
subject to the provisions of Section 6.01.
(b) The Company agrees that it shall, at any time and from time to
time:
32
(i) take any and all action as may be necessary to assure the
accuracy and completeness of all information set forth in the Share Register
maintained by the Russian Share Registrar in respect of the Shares or Deposited
Securities;
(ii) provide or cause the Russian Share Registrar to provide
to the Depositary, the Custodian or their respective agents unrestricted access
to the Share Register, in such manner and upon such terms and conditions as the
Depositary may, in its sole discretion, deem appropriate, to permit the
Depositary, the Custodian or their respective agents to regularly (and in any
event not less than monthly) confirm the number of Deposited Securities
registered in the name of the Depositary, the Custodian or their respective
nominees, as applicable, pursuant to the terms of this Deposit Agreement and, in
connection therewith, to provide the Depositary, the Custodian or their
respective agents, upon request, with a duplicative extract from the Share
Register duly certified by the Russian Share Registrar (or some other evidence
of verification which the Depositary, in its sole discretion, deems sufficient);
(iii) ensure that the Russian Share Registrar within 72 hours
(or as soon thereafter as possible) after receipt from the Custodian or any of
its agents. of such documentation as may be required by applicable law and the
reasonable and customary regulations of the Russian Share Registrar) effects the
re-registration of ownership of Deposited Securities in the Share Register in
connection with any deposit or withdrawal of Shares or Deposited Securities
under this Deposit Agreement;
(iv) permit and cause the Russian Share Registrar to permit
the Depositary or the Custodian to register any Shares or other Deposited
Securities held hereunder in the name of the Depositary, the Custodian or their
respective nominees (which may, but need not be, a nonresident of the Russian
Federation); and
(v) ensure that the Russian Share Registrar promptly notifies
the Depositary in writing at any time that the Russian Share Registrar (A)
eliminates the name of a shareholder of the Company from the Share Register or
otherwise alters a shareholder's interest in the Company's shares and such
shareholder alleges to the Company, the Russian Share Registrar or publicly that
such elimination or alteration is unlawful; (B) no longer will be able
materially to comply with, or has engaged in conduct that indicates it will not
materially comply with, the provisions of this Deposit Agreement relating to it
(including, without
33
limitation, this Section 5.13); (C) refuses to reregister shares of the Company
in the name of a particular purchaser and such purchaser (or its respective
seller) alleges that such refusal is unlawful; (D) holds shares of the Company
for its own account; or (E) has materially breached the provisions of this
Deposit Agreement relating to it (including, without limitation, this Section
5.13) and has failed to cure such breach within a reasonable time.
(c) The Company agrees that it shall be solely liable for any act
or failure to act on the part of the Russian Share Registrar and that the
Company shall be solely liable for the unavailability of Deposited Securities or
for the failure of the Depositary to make any distribution of cash or property
with respect thereto as a result of (i) any act or failure to act of the Company
or its agents, including the Russian Share Registrar, or their respective
directors employees, agents or affiliates, (ii) any provision of any present or
future Charter of the Company or any other instrument of the Company governing
the Deposited Securities, or (iii) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof.
(d) The Depositary agrees for the benefit of Owners and Beneficial
Owners that the Depositary or the Custodian shall regularly (and in any event
not less than monthly) confirm the number of Deposited Securities registered in
the name of the Depositary, the Custodian or their respective nominees, as
applicable, pursuant to the terms of this Deposit Agreement. The Company and the
Depositary agree that, for purposes of the rights and obligations under this
Deposit Agreement of the parties hereto, the records of the Depositary and the
Custodian shall be controlling for all purposes with respect to the number of
Shares or other Deposited Securities which should be registered in the name of
the Depositary, the Custodian or their respective nominees, as applicable,
pursuant to the terms of this Deposit Agreement. The Depositary agrees that it
will instruct the Custodian to maintain custody of all duplicative share
extracts (or other evidence of verification) provided to the Depositary, the
Custodian or their respective agents pursuant to Section 5.13(b). In the event
of any material discrepancy between the records of the Depositary or the
Custodian and the Share Register, then, if an officer of the ADR Department of
the Depositary has actual knowledge of such discrepancy, the Depositary shall
promptly notify the Company. In the event of any discrepancy between the records
of the Depositary or the Custodian and the Share Register, the Company agrees
that (whether or not it has received any notification from the Depositary) it
will (i) use its best efforts to cause the Russian Share Registrar to reconcile
its records to the
34
records of the Depositary or the Custodian and to make such corrections or
revisions in the Share Register as may be necessary in connection therewith, and
(ii) to the extent the Company is unable to so reconcile such records, promptly
instruct the Depositary to notify the Owners of the existence of such
discrepancy. Upon receipt of such instruction, the Depositary shall promptly
give such notification to the Owners pursuant to Section 4.09 (it being
understood that the Depositary may at any time give such notification to the
Owners, whether or not it has received instructions from the Company) and shall
promptly cease issuing Receipts pursuant to Section 2.02 until such time as, in
the opinion of the Depositary, such records have been appropriately reconciled.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and the
Depositary without the consent of Owners or Beneficial Owners of Receipts in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner, at the time any amendment so becomes effective, shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall, at any time at the direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Owners of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding, such termination to be effective on a date
specified in such notice not less than 30 days after the date thereof, if at any
time 30 days shall have
35
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary and (b) payment of any
applicable taxes or governmental charges and the fees and expenses of the
Depositary, including the fee of the Depositary for the surrender of Receipts
referred to in Section 5.09, be entitled to delivery, to him or upon his order,
of the amount of Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in the manner provided in Section 2.05. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges), and except as provided in Section
5.08. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
36
ARTICLE 7. MISCELLANEOUS
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of such counterparts shall constitute
one and the same instrument. Copies of this Deposit Agreement shall be filed
with the Depositary and the Custodians and shall be open to inspection by any
Owner or Beneficial Owner of a Receipt during business hours.
SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto and
shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this Deposit Agreement or
in the Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.
SECTION 7.05. Notices.
Any and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to JSC Surgutneftegaz, 00 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx, 000000, Xxxxxx, or any other place to which the
Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have been
duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been duly
given if personally delivered or
37
sent by mail or cable, telex or facsimile transmission confirmed by letter,
addressed to such Owner at the address of such Owner as it appears on the
transfer books for Receipts of the Depositary, or, if such Owner shall have
filed with the Depositary a written request that notices intended for such Owner
be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a postoffice letter
box. The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06. Arbitration; Settlement of Disputes.
(a) Any controversy, claim or cause of action brought by any party
hereto against the Company arising out of or relating to the Shares or other
Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, or the breach hereof or thereof, shall be finally settled by
arbitration in accordance with the rules of the American Arbitration
Association, which rules are deemed to be incorporated by reference into this
Section 7.06, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof; provided, that in the event of
any third-party litigation to which the Depositary is a party and to which the
Company may properly be joined, the Company may be so joined in any court of
competent jurisdiction in which such litigation is proceeding; and provided
further that any such controversy, claim or cause of action relating to or based
upon the provisions of the Federal securities laws of the United States or the
rules and regulations promulgated thereunder may, but need not, be submitted to
arbitration as provided in this Section 7.06. The place of the arbitration shall
be New York, New York, and the language of the arbitration shall be English.
The number of arbitrators shall be three, each of whom shall be disinterested in
the dispute or controversy, shall have no connection with any party thereto, and
shall be an attorney reasonably experienced in international securities
transactions. If a dispute, controversy or cause of action shall involve more
than two parties, the parties shall attempt to align themselves in two sides
(i.e., claimant and respondent), each of which shall appoint one arbitrator as
if there were only two parties to such
38
dispute, controversy or cause of action. If such alignment and appointment shall
not have occurred within twenty (20) calendar days after the initiating party
serves the arbitration demand, the American Arbitration Association shall
appoint the three arbitrators. The parties and the American Arbitration
Association may appoint from among the nationals of any country, whether or not
a party is a national of that country, except that the Chair of the panel shall
not be a national of the country of any party.
The arbitrators shall have no authority to award punitive or other damages not
measured by the prevailing party's actual damages and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of this Agreement.
(b) Any controversy, claim or cause of action arising out of or
relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or this Deposit Agreement not subject to arbitration shall
be litigated in the Federal and state courts in the Borough of Manhattan.
SECTION 7.07. Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints CT Corporation
System, in the United States of America, as the Company's authorized agent upon
which process may be served in any suit or proceeding (including, but not
limited to, any arbitral proceeding as contemplated by Section 7.06 of this
Deposit Agreement) in any United States or State court in the State of New York,
County of New York arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Agreement, (ii)
consents and submits to the jurisdiction of any court in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent and written notice of such service to the Company (which notice
may be given by facsimile) shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company agrees to
deliver, upon the execution and delivery of this Deposit Agreement, a written
acceptance by such agent of its appointment as such agent. The Company further
agrees to take any and all action, including the filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any American Depositary
Shares or Receipts remain outstanding or this Agreement remains in force. In the
event the Company fails to continue such designation and appointment in full
force and effect, the Company hereby waives personal service of process upon it
and consents that any such service of process may be made by certified or
39
registered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder, and service so made shall be
deemed completed ten (10) days after the same shall have been so mailed.
SECTION 7.08. Waiver of Immunities.
To the extent that the Company or any of its properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
sovereign immunity from any legal action, suit or proceeding from the giving of
any relief in any respect thereof, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any United States or State
court in the State of New York, County of New York, in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with the Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, the Company, to
the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
SECTION 7.09. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York, except with respect to its authorization and
execution by the Company, which shall be governed by the laws of the Russian
Federation.
SECTION 7.10. Assignment.
This Deposit Agreement may not be assigned by either the Company or the
Depositary.
40
IN WITNESS WHEREOF, JSC SURGUTNEFTEGAZ and THE BANK OF NEW YORK have duly
executed this Deposit Agreement in both English and Russian language versions,
of which the English language version shall be controlling, as of the day and
year first set forth above and all Owners and Beneficial Owners shall become
parties hereto upon acceptance by them of Receipts issued in accordance with the
terms hereof.
JSC SURGUTNEFTEGAZ
By: /s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
General Director
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Account
THE BANK OF NEW YORK,
As Depositary
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Senior Vice President
41
EXHIBIT A
AMERICAN DEPOSITARY SHARES (Each
American Depositary Share represents
fifty (50) deposited Shares)
IT IS EXPECTED THAT COMMON SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE
SHARE REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR IN THE NAME OF THE
DEPOSITARY OR ITS NOMINEE OR OF THE CUSTODIAN OR ITS NOMINEE. OWNERS AND
BENEFICIAL OWNERS SHOULD BE AWARE, HOWEVER, THAT RUSSIA'S SYSTEM OF SHARE
REGISTRATION AND CUSTODY CREATES CERTAIN RISKS OF LOSS THAT ARE NOT NORMALLY
ASSOCIATED WITH INVESTMENTS IN OTHER SECURITIES MARKETS. THE DEPOSITARY WILL NOT
BE LIABLE FOR THE UNAVAILABILITY OF COMMON SHARES OR FOR THE FAILURE TO MAKE ANY
DISTRIBUTION OF CASH OR PROPERTY WITH RESPECT THERETO AS A RESULT OF SUCH
UNAVAILABILITY.
THE DEPOSITARY HAS BEEN ADVISED BY RUSSIAN COUNSEL THAT COURTS IN THE
RUSSIAN FEDERATION WILL NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN
THE NEW YORK COURTS.
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
THE NOMINAL VALUE OF 1,000 RUBLES EACH OF
JSC SURGUTNEFTEGAZ
(INCORPORATED UNDER THE LAWS OF THE RUSSIAN FEDERATION)
The Bank of New York, as depositary (hereinafter, together with The Bank of New
York International Nominees, a New York partnership, as nominee of The Bank of
New York in whose name Shares are registered pursuant to the Deposit Agreement,
the "Depositary"), hereby certifies that _______________________________________
_________________________________________, or registered assigns IS THE OWNER OF
_________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares, nominal value 1,000 Rubles each, (herein
called "Shares") of JSC SURGUTNEFTEGAZ, incorporated under the laws of the
Russian Federation (herein called the "Company"). At the date hereof, each
American Depositary Share represents fifty (50) Shares deposited or subject to
deposit under the Deposit Agreement (as such term is hereinafter defined) at the
Moscow, Russian Federation, office of ING Eurasia (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive
office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, and its principal executive office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called "Receipts"),
all issued and to be issued upon the terms and conditions set forth in the
deposit agreement, dated as of December 30, 1996 (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and become bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and Beneficial Owners of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject to
the detailed provisions of the Deposit Agreement, to which reference is hereby
made. Capitalized terms defined in the Deposit Agreement and not defined herein
shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this Receipt,
and upon payment of the fee of the Depositary provided in this Receipt, and
subject to the terms and conditions of the Deposit Agreement and accompanied by
such documents as the Depositary may require (including a purchase/sale contract
relating to the transfer of the Shares) and upon payment of the fee of the
Depositary for the surrender of Receipts as provided in Section 5.09 of the
Deposit Agreement and payment of all taxes and governmental charges payable in
connection with such surrender and withdrawal of the Deposited Securities and
subject to the terms and conditions of the Deposit Agreement, the Charter of the
Company and the Deposited Securities, the Owner hereof is entitled to delivery,
to him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares for which this
2
Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates or other documents evidencing title (including
extracts from the Share Register) in the name of the Owner hereof or as ordered
by him or certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such Owner is
then entitled in respect of this Receipt. The Depositary shall direct the
Custodian or its agents to cause the transfer and recordation by the Russian
Share Registrar on the Share Register of the Shares being withdrawn in the name
of such Owner or as directed by him as above provided, and the Company shall
ensure that such transfer and recordation is effected within 72 hours (or as
soon thereafter as possible) of the Russian Share Registrar's receipt of such
documentation as may be required by applicable law and the reasonable and
customary regulations of the Russian Share Registrar. Upon such transfer and
recordation, the Custodian shall deliver at the Moscow, Russian Federation,
office of the Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the
other terms and conditions of the Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, documents evidencing title (including extracts
from the Share Register) for the amount of Deposited Securities represented by
the American Depositary Shares evidenced by this Receipt, except that, if and to
the extent practicable, the Depositary may make delivery to such person or
persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary. At the request, risk and expense of any Owner so surrendering this
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents evidencing
title for (as described above), the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt to the Depositary for
delivery at the Corporate Trust Office of the Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Owner, by cable,
telex or facsimile transmission.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary at
its Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, without unreasonable delay, upon surrender of this Receipt properly
endorsed for transfer or accompanied by proper instruments of transfer and funds
sufficient to pay any
3
applicable transfer taxes and the expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such purpose.
This Receipt may be split into other such Receipts, or may be combined with
other such Receipts into one Receipt, evidencing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered. As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presenter of the Receipt of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and expenses as provided in this Receipt, may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
reasonable regulations as the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Article 3.
The delivery of Receipts against deposit of Shares generally or against deposit
of particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or this Receipt, or
for any other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares. The Depositary has agreed to comply with written
instructions of the Company that the Depositary will not accept for deposit
under the Deposit Agreement any
4
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with the securities laws of the United
States.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof to
the Depositary, and such Owner or Beneficial Owner shall be deemed liable
therefor. In addition to any other remedies available to it, the Depositary may
refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner or Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner hereof shall remain
liable for any deficiency. The obligations of Owners and Beneficial Owners under
this Article 4 shall survive any transfer of Receipts pursuant to Section 2.04
of the Deposit Agreement, any surrender of Receipts and withdrawal of Deposited
Securities pursuant to Section 2.05 of the Deposit Agreement, or the termination
of the Deposit Agreement pursuant to Section 6.02 of the Deposit Agreement.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non-assessable, and free of any preemptive
rights of the holders of outstanding Shares and that the person making such
deposit is duly authorized so to do. Every such person shall also be deemed to
represent that such Shares and the Receipts evidencing American Depositary
Shares representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Russian Share Registrar, if applicable, to execute such certificates and to make
such
5
representations and warranties, as the Depositary, or the Company, upon written
notice to the Depositary, may deem necessary or proper. The Depositary may, and
at the reasonable written request of the Company will, withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made to the
satisfaction of the Depositary and the Company. Each Owner and Beneficial Owner
agrees to provide any information requested by the Company or the Depositary
pursuant to Section 3.01 of the Deposit Agreement and this Article 6. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in the Russian Federation which is then performing the function of the
regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present detailed statements for such charges
and expenses to the Company once every three months. The charges and expenses of
the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing
Shares, by any Owner of Receipts or by any party surrendering Receipts or to
whom Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.03 of the Deposit Agreement), whichever applicable: (1)
taxes and other governmental charges, (2) such registration fees as may from
time to time be in effect for the registration of transfers of Shares generally
on the Share Register of the Company maintained by the Russian Share Registrar
and applicable to transfers of Shares to the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or withdrawals
under the terms of the Deposit Agreement, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the
Deposit Agreement and the surrender of Receipts
6
pursuant to Section 2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to Sections 4.01 through 4.04 of the Deposit
Agreement, (7) a fee of $.01 or less per American Depositary Share (or portion
thereof) per year to cover such expenses as are incurred for inspections by the
Depositary the Custodian or their respective agents of the Share Register
maintained by the Russian Share Registrar (Such fee shall be assessed against
Owners of record as of the date or dates set by the Depositary in accordance
with Section 4.06 and shall be collected at the sole discretion of the
Depositary by billing such Owners for such fee or by deducting such fee from one
or more cash dividends or other cash distributions.), (8) a fee for the
distribution of securities pursuant to Section 4.02 of the Deposit Agreement,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 8 treating
all such securities as if they were Shares), but which securities are instead
distributed by the Depositary to Owners and (9) a fee not in excess of $1.50 per
certificate for a Receipt or Receipts for transfers made pursuant to the terms
of the Deposit Agreement.
The Depositary, subject to Article 8 hereof, may own and deal in, in accordance
with applicable law, any class of securities of the Company and its affiliates
and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against rights to receive Shares from
the Company. No such issue of Receipts will be deemed a "Pre-Release" subject to
the restrictions of the following paragraph.
Unless requested by the Company to cease doing so, notwithstanding Section 2.03
of the Deposit Agreement, the Depositary may execute and deliver Receipts prior
to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05 of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of Receipts which
have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered (the "Pre-Releasee"), that the Pre-Releasee, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized (such collateral
7
marked to market daily) with cash or such other collateral as the Depositary
reasonably deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate and
may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case by case basis as it deems appropriate. The
collateral referred to in clause (b) above will be held by the Depositary for
the benefit of the Owners as security for the performance of the obligations to
deliver Shares set forth in clause (a) above (and will not, for the avoidance of
doubt, constituted deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by it in
connection with the foregoing. The Company will have no liability to any Owner
with respect to any representations, actions or omissions by the Depositary, and
holder of Receipts, or any Owner or any of their respective agents pursuant to
Section 2.09 of the Deposit Agreement and this Article 8.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Beneficial
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary and the Company, notwithstanding any notice to the
contrary, may treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement or for all
other purposes, and neither the Depositary nor the Company will have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of this Receipt unless such holder is the Owner hereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit Agreement
or be valid or obligatory for
8
any purpose, unless this Receipt shall have been executed by the Depositary by
the manual signature of a duly authorized signatory of the Depositary; provided,
however that such signature may be a facsimile if a Registrar for the Receipts
shall have been appointed and such Receipts are countersigned by the manual
signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Owners of Receipts (i) copies of such reports when
furnished by the Company pursuant to Section 5.06 the Deposit Agreement, (ii)
copies of any written communications provided to the Depositary by the Russian
Share Registrar pursuant to Section 5.13(a)(v) of the Deposit Agreement; and
(iii) copies of any notices given or required to be given by the Depositary
pursuant to Section 5.13(c) of the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company,
including, without limitation, a matter related to the Deposit Agreement or the
Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash distribution on
any Deposited Securities, the Depositary will, if at the time of receipt thereof
any amounts received in a foreign currency can in the judgment
9
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement,
convert, as promptly as practicable, such dividend or distribution into dollars
and will distribute, as promptly as practicable, the amount thus received (net
of the fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) to the Owners of Receipts entitled
thereto; provided, however, that in the event that the Company or the Depositary
is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Section 11 and 5.09 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement, the
Depositary will, as promptly as practical, cause the securities or property
received by it to be distributed to the Owners entitled thereto, in any manner
that the Depositary may reasonably deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of
the Depositary such distribution cannot be made proportionately among the Owners
of Receipts entitled thereto, or if for any other reason the Depositary
reasonably deems such distribution not to be feasible, the Depositary may, after
consultation with the Company to the extent practicable, adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Article 7 hereof and Section 5.09 of the Deposit Agreement) will be distributed
by the Depositary to the Owners of Receipts entitled thereto all in the manner
and subject to the conditions described in Section 4.01 of the Deposit
Agreement; provided, however, that no distribution to Owners pursuant to Section
4.02 of the Deposit Agreement will be unreasonably delayed by any action of the
Depositary or any of its agents.
If any distribution consists of a dividend in, or free distribution of, Shares,
the Depositary may and will, if the Company shall so request, distribute, as
promptly as practicable, to the Owners of outstanding Receipts entitled thereto,
additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of
10
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement. The Depositary
may withhold any such distribution of Receipts under Section 4.03 of the Deposit
Agreement if it has not received satisfactory assurances from the Company that
such distribution does not require registration under the Securities Act of 1933
or is exempt from registration under the provisions of such Act. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary will sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.01 of the Deposit Agreement; provided,
however, that no distribution to Owners pursuant to Section 5.03 of the Deposit
Agreement will be unreasonably delayed by any action of the Depositary or any of
its agents. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) or any deposit of Shares,
transfer of Receipts or withdrawal of Deposited Securities under the Deposit
Agreement is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay any such taxes or charges, and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners of Receipts entitled thereto. The Depositary
will forward to the Company such information from its records as the Company may
request to enable the Company to file necessary reports with governmental
authorities or agencies, and either the Company or the Depositary may file any
such reports necessary to obtain benefits under any applicable tax treaties for
Owners.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the holders
of any Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary, after consultation with the Company
to the extent practicable, shall have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering
11
or for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may, and at the request of the Company
shall, distribute to any Owner to whom it determines the distribution to be
lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it
deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner
of Receipts requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will promptly make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to
all or certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this Article 13, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines, after consultation with the Company to the extent
practicable, that it is not lawful and feasible to make such rights available to
all or certain Owners, it may, and at the request of the Company shall use
12
its best efforts that are reasonable under the circumstances to, sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Such proceeds
will be distributed as promptly, as practicable in accordance with Section 4.01
of the Deposit Agreement.
The Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act of 1933 with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that it may
be lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of dividends or
other distributions or the net proceeds from the sale of securities, property or
rights, into the Depositary's foreign investment account in the Russian
Federation, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall convert or cause to be converted, as promptly as
practicable, by sale or in any other manner that it may determine, in accordance
with applicable law, such foreign currency into Dollars, and such
13
Dollars shall be distributed as promptly as practicable to the Owners entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file, as
promptly as practicable, such application for approval or license; however, the
Depositary will be entitled to rely on local Russian counsel in such matters,
which counsel shall be instructed to act as promptly as practicable.
If at any time any foreign currency received by the Depositary or the Custodian
is not, pursuant to applicable law, convertible, in whole or in part, into
Dollars transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary cannot be promptly obtained, or if any such
approval or license is not promptly obtained, the Depositary shall, (a) as to
that portion of the foreign currency that is convertible into Dollars, make such
conversion and if permitted by applicable law, transfer such Dollars to the
United States for distribution in accordance with the first paragraph of Section
4.05 of the Deposit Agreement and of this Article 14, and (b) as to the
nonconvertible balance, if any, (i) if requested in writing by an owner,
distribute the foreign currency (or an appropriate document evidencing the right
to receive such foreign currency) received by the Depositary to such Owner and
(ii) if not so requested by an Owner, hold such foreign currency uninvested and
without liability for interest thereon for the respective accounts of the Owners
entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners.
15. RECORD DATES.
14
Whenever any cash dividend or other cash distribution shall become payable or
any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be, or be as close as possible to, the
record date applicable to the relevant Deposited Securities (a) for the
determination of the Owners of Receipts who shall be (i) entitled to receive
such dividend, distribution or rights or the net proceeds of the sale thereof or
(ii) entitled to give instructions for the exercise of voting rights at any such
meeting, (b) on or after which each American Depositary Share will represent the
changed number of Shares, subject to the provisions of the Deposit Agreement or
(c) for the determination of the Owners who shall be responsible for the fee
assessed by the Depositary pursuant to Article 8 hereof for inspection of the
Share Register maintained by the Russian Share Xxxxxxxxx.
00. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, in such
form as approved by the Company to the extent practicable, which shall contain
(a) such information as is contained in such notice of meeting received by the
Depositary from the Company (or if requested by the Company, a summary of such
information provided by the Company), (b) a statement that the Owners of
Receipts as of the close of business on a specified record date will be
entitled, subject to any applicable provision of law and of the Charter of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of an Owner of a Receipt on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted
the amount of Shares or other Deposited Securities represented by such American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request.
15
The Depositary shall not vote or attempt to exercise the right to vote that
attaches to the Shares or other Deposited Securities, other than in accordance
with such instructions. If no instructions are received by the Depositary from
any Owner with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Owner's Receipts on or before the
date established by the Depositary for such purpose, the Depositary shall deem
such Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided that no such discretionary
proxy will be deemed given with respect to any matter as to which the Company
informs the Depositary (the Company having agreed to provide such information as
promptly as practicable in writing) that (x) the Company does not wish such
proxy given, (y) substantial opposition exists or (z) such matter materially and
adversely affects the rights of holders of Shares.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit Agreement
do not apply, upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation, or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities shall be treated as new Deposited Securities
under the Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, in its reasonable discretion, after
consultation with the Company to the extent practicable, and will, if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities. Promptly upon receipt of notice from the Company pursuant to Section
5.06 of the Deposit
Agreement of the occurrence of any of the events referred to in the first
sentence of this Article 17, the Depositary will give notice thereof to all
Owners.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective directors,
employees, agents or affiliates shall incur any liability to any Owner or
Beneficial Owner of any
16
Receipt, if by reason of any provision of (a) any present or future law or
regulation of the United States or any other country, or of any other
governmental or regulatory authority, or by reason of any act of God or war or
other circumstances beyond its control, or (b) in the case of the Depositary
only, (i) any act or failure to act of the Company or its agents, including the
Russian Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision, present or future, of the Charter of the Company
or any other instrument of the Company governing the Deposited Securities or
(iii) any provision of any securities issued or distributed by the Company, or
any offering or distribution thereof, the Depositary or the Company shall be
prevented, delayed or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms of
the Deposit Agreement or Deposited Securities it is provided shall be done or
performed (including, in the case of the Depositary, delivery of any Deposited
Securities or distribution of cash or property in respect thereof pursuant to
Articles 12 and 13 hereof); nor shall the Depositary or the Company or any of
their respective directors, employees, agents or affiliates incur any liability
to any Owner or Beneficial Owner of a Receipt by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement or in the Charter of the
Company. Where, by the terms of a distribution pursuant to Section 4.01, 4.02 or
4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 of the Deposit Agreement, the Depositary is prevented or prohibited
from disposing such distribution or offering available to Owners of Receipts,
and the Depositary is prevented or prohibited from disposing of such
distribution or offering on behalf of such Owners and making the net proceeds
available to such Owners, then the Depositary, after consultation with the
Company to the extent practicable, shall not make such distribution or offering,
and shall allow any rights, if applicable, to lapse. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Owners or Beneficial Owners of Receipts, except that (i)
the Company agrees to perform its obligations specifically set forth in the
Deposit Agreement and (ii) the Depositary agrees to perform its obligations
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any
17
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
inaction by it in reliance upon the advice of or information from accountants,
any person presenting Shares for deposit, any Owner or Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information or, in the case of the Depositary only, legal
counsel. The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or inaction is in good faith. The Depositary shall not be liable for
any acts or omissions made by a successor depositary whether in connection with
a previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Depositary shall not be liable to the Company, any
Owner or Beneficial Owner or any other person for the unavailability of
Deposited Securities or for the failure to make any distribution of cash or
property with respect thereto as a result of (i) any act or failure to act of
the Company or its agents, including the Russian Share Registrar, or their
respective directors, employees, agents or affiliates, (ii) any provision of any
present or future law or regulation of the United States, the Russian Federation
or any other country, (iii) any provision of any present or future regulation of
any governmental or regulatory authority or stock exchange, (iv) any provision
of any present or future Charter of the Company or any other instrument of the
Company governing the Deposited Securities, (v) any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or (vi) any act of God or war or other circumstance beyond its control. The
Company shall not be liable to the Depositary, any Owner or Beneficial Owner or
any other person for the unavailability of the Deposited Securities or for the
failure to make any distribution of cash or property with respect thereto as a
result of (i) any provision of any present or future law or regulation of the
United States, (ii) any provision of any present or future regulation of any
governmental or regulatory authority or stock exchange in the United States or
(iii) any act of God or war or other circumstance occurring in the United States
beyond its control. The Company agrees to indemnify the
18
Depositary, any Custodian, and their respective directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
liability or -expense (including, but not limited to, the expenses of counsel)
which may arise out of (a) any acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified, or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates or (b) the unavailability of Deposited
Securities or the failure to make any distribution of cash or property with
respect thereto as a result of (i) any act or failure to act of the Company or
its agents, including the Russian Share Registrar, or their respective
directors, employees, agents or affiliates, (ii) any provision of any present or
future Charter of the Company or any other instrument of the Company governing
Deposited Securities or (iii) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof. No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder by written notice
of its election so to do delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by written notice of such removal, effective upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do so,
it may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and the
Depositary without the consent of Owners or Beneficial Owners of Receipts in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees and cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
19
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby except in order to comply with mandatory provisions of
applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall terminate the
Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding, such termination to be effective on a date
specified in such notice not less than 30 days after the date thereof, if at any
time 30 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in the
Deposit Agreement. On and after the date of termination, the Owner of a Receipt
will, upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary and (b) payment of any applicable taxes or governmental charges and
the fees and expenses of the Depositary, including the fee of the Depositary for
the surrender of Receipts referred to in Article 8 hereof and Section 2.05 of
the Deposit Agreement, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in the manner provided in Section 2.05 of the Deposit
Agreement. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement,-and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
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Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges), and
except as provided in Section 5.08 of the Deposit Agreement. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
22. ARBITRATION; WAIVER OF IMMUNITIES
The Deposit Agreement provides that any controversy, claim or cause of action
brought by any party to the Deposit Agreement against the Company arising out of
or relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, or the breach thereof, shall be
finally settled by arbitration in London, England, in accordance with the Rules
of the London Court of International Arbitration, which rules are deemed to be
incorporated by reference into this Article 22, and that judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof; provided, that in the event of any third-party litigation to which the
Depositary is a party and to which the Company may properly be joined, the
Company may be so joined in any court of competent jurisdiction in which such
litigation is proceeding; and provided further that any such controversy, claim
or cause of action that relates to or is based upon the provisions of the
Federal securities laws of the United States or the rules and regulations
promulgated thereunder may, but need not, be submitted to arbitration as
provided in the Deposit Agreement. The Deposit Agreement further provides that
any controversy, claim or cause of action arising out of or relating to the
Shares or other Deposited Securities, the American Depositary Shares, the
Receipts or this Deposit Agreement not subject to clause (a) above shall be
litigated in the Federal and state courts in the Borough of Manhattan.
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To the extent that the Company or any of its properties, assets or revenues may
have or hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of an relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution or judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any United States or State
court in the State of New York, County of New York, in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or the Deposit
Agreement, the Company, to the fullest extent permitted by law, has irrevocably
and unconditionally waived, and has agreed not to plead or claim, any such
immunity and has consented to such relief and enforcement.
23. REGISTRATION OF SHARES; RUSSIAN SHARE REGISTRAR; SHARE REGISTER
(a) The Company has agreed in the Deposit Agreement that it shall, at
any time and from time to time:
(i) take any and all action as may be necessary to assure the
accuracy and completeness of all information set forth in the Share Register
maintained by the Russian Share Registrar in respect of the Shares or Deposited
Securities;
(ii) provide or cause the Russian Share Registrar to provide to
the Depositary, the Custodian or their respective agents unrestricted access to
the Share Register, in such manner and upon such terms and conditions as the
Depositary may, in its sole discretion, deem appropriate, to permit the
Depositary, the Custodian or their respective agents to regularly (and in any
event not less than monthly) confirm the number of Deposited Securities
registered in the name of the Depositary, the Custodian or their respective
nominees, as applicable, pursuant to the terms of this Deposit Agreement and, in
connection therewith, to provide the Depositary, the Custodian or their
respective agents, upon request, with a duplicate extract from the Share
Register duly certified by the Russian Share Registrar (or some other evidence
of verification which the Depositary, in its sole discretion, deems sufficient);
(iii) ensure that the Russian Share Registrar within 72 hours
(or as soon thereafter as possible) after Receipt from the Custodian or any of
its agents of such
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documentation as may be required by applicable law and the reasonable and
customary regulations of the Russian Share Registrar) effects the
re-registration of ownership of Deposited Securities in the Share Register in
connection with any deposit or withdrawal of Shares or Deposited Securities
under this Deposit Agreement; (iv) permit and cause the Russian Share Registrar
to permit the Depositary or the Custodian to register any Shares or other
Deposited Securities held hereunder in the name of the Depositary, the Custodian
or their respective nominees (which may, but need not be, a nonresident of the
Russian Federation); and
(iv) ensure that the Russian Share Registrar promptly notifies
the Depositary in writing at any time that the Russian Share Registrar (A)
eliminates the name of a shareholder of the Company from the Share Register or
otherwise alters a shareholder's interest in the Company's shares and such
shareholder alleges that such elimination or alteration is unlawful; (B) no
longer will be able materially to comply with, or has engaged in conduct that
indicates it will not materially comply with, the provisions of the Deposit
Agreement relating to it (including, without limitation, Section 5.13 thereof);
(C) refuses to reregister shares of the Company in the name of a particular
purchaser and such purchaser (or its respective seller) alleges that such
refusal is unlawful; (D) holds shares of the Company for its own account; or (E)
has materially breached the provisions of the Deposit Agreement relating to it
(including, without limitation, Section 5.13 thereof) and has failed to cure
such breach within a reasonable time.
(b) The Company has agreed in the Deposit Agreement that it shall be
solely liable for any act or failure to act on the part of the Russian Share
Registrar and that the Company shall be solely liable for the unavailability of
Deposited Securities or for the failure of the Depositary to make any
distribution of cash or property with respect thereto as a result of (i) any act
or failure to act of the Company or its agents, including the Russian Share
Registrar, or their respective directors, employees, agents or affiliates, (ii)
any provision of any present or future Charter of the Company or any other
instrument of thee Company governing the Deposited Securities, or (iii) any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof.
(c) The Depositary has agreed in the Deposit Agreement that the
Depositary or the Custodian will regularly (and in any event not less than
monthly) confirm the number of Deposited Securities registered in the name of
the
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Depositary, the Custodian or their respective nominees, as applicable, pursuant
to the terms of the Deposit Agreement. The Company and the Depositary have
agreed in the Deposit Agreement that, for purposes of the rights and obligations
under the Deposit Agreement and this Receipt of the parties thereto and hereto,
the records of the Depositary and the Custodian shall be controlling for all
purposes with respect to the number of Shares or other Deposited Securities
which should be registered in the name of the Depositary, the Custodian or their
respective nominees, as applicable, pursuant to the terms of the Deposit
Agreement. In the event of any material discrepancy between the records of the
Depositary or the Custodian and the Share Register, then, if an officer of the
ADR Department of the Depositary has actual knowledge of such discrepancy, the
Depositary will promptly notify the Company. In the event of any discrepancy
between the records of the Depositary or the Custodian and the Share Register,
the Company agrees to use its best-efforts to cause the Russian Share Registrar
to reconcile its records to the records of the Depositary or the Custodian and
to make such corrections or revisions in the Share Register as may be necessary
in connection therewith and (ii) to the extent the Company is unable to so
reconcile such records, promptly instruct the Depositary to notify the Owners of
the existence of such discrepancy. Upon receipt of such instruction, the
Depositary will promptly give such notification to the Owners pursuant to
Section 4.09 of the Deposit Agreement (it being understood that the Depositary
may at any time give such notification to the Owners, whether or not it has
received instructions from the Company) and will promptly cease issuing Receipts
pursuant to Section 2.02 of the Deposit Agreement until such time as in the
opinion of the Depositary, such records have been appropriately reconciled.
24. DISCLOSURE OF INTERESTS.
The Company or the Depositary may from time to time request Owners to
provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
having a beneficial interest in such Receipts and the nature of such interest
and various other matters. Each Owner agrees to provide any information
requested by the Company or the Depositary pursuant to Section 3.04 of the
Deposit Agreement and this Article 24. To the extent that provisions of or
governing any Deposited Securities (including the Company's Charter or
applicable law) may require the disclosure of beneficial or other ownership of
Deposited Securities, other Shares and other securities to the Company and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, Owners and Beneficial Owners are required to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary's compliance with Company
24
instructions as to Receipts in respect of any such enforcement or limitation.
