AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of June , 2008 (the "Amendment") to the Amended and Restated Deposit
Agreement dated as of April 22, 2002 as further Amended and Restated as of
December 15, 2002 (as so further amended and restated, the "Deposit Agreement"),
among Open Joint Stock Company Uralsvyazinform (the "Company"), incorporated
under the laws of The Russian Federation, JPMorgan Chase Bank, N.A., as
depositary (the "Depositary"), and all Owners and Beneficial Owners from time
to
time of American Depositary Receipts ("Receipts") issued
thereunder.
W
I T
N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to Section 6.01 of the Deposit Agreement, the Company and the
Depositary desire to amend the terms of the Deposit Agreement and
Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF RECEIPT
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or JPMorgan Chase Bank
shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. Section
3.04 of the Deposit Agreement and Article 24 of the Receipts are amended to
read
as follows:
The
Company or, on the request of the Company, the Depositary may from time to
time
request Owners to provide information as to the capacity in which such Owners
own or owned Receipts and regarding the identity of any other persons then
or
previously having a beneficial interest in such Receipts and the nature of
such
interest and various other matters. Each Owner agrees to provide any information
requested pursuant to this [Section 3.04][Article 24]. The Depositary agrees
to
comply with reasonable written instructions received from time to time from
the
Company requesting that the Depositary forward any such requests to the Owners
and to forward to the Company any such responses to such requests received
by
the Depositary. To the extent that provisions of or governing any Deposited
Securities (including the Company's Charter or applicable law) may require
the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Company may instruct the Depositary to shall use its reasonable efforts
under the circumstances to comply with the Company instructions as to Receipts
in respect of any such enforcement or limitation, and Owners and Beneficial
Owners shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
Company instructions; provided, however, the Company acknowledges that no such
instructions shall be provided to the Depositary with respect to any Receipts
registered in the name of The Depository Trust Company or its nominee.
SECTION
2.04. The
first
paragraphs of Section 4.06 of the Deposit Agreement and Article 15 of the
Receipt are each amended to include the following at the conclusion
thereof:
and/or
(c) for the determination of the Owners who shall be responsible for the fees
assessed by the Depositary for administration of the Receipt program and for
any
expenses provided for in [Section 5.09] [Article 7] hereof.
2
SECTION
2.05. Section
5.02 of the Deposit Agreement and Article 18 of the Receipt are each amended
to
include the following immediately prior to the final sentence
thereof:
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Owners or Beneficial Owners for any indirect, special, punitive or
consequential damages.
SECTION
2.06. The
second paragraph of Section 5.08 of the Deposit Agreement is deleted in its
entirety and replaced with the following:
The
Depositary agrees to indemnify the Company, its directors, employees, agents
and
affiliates and hold them harmless from any liability or expense which may arise
out of acts performed or omitted by the Depositary or its Custodian or their
respective directors, employees, agents and affiliates due to their negligence
or bad faith.
Notwithstanding
any other provision of this Deposit Agreement (including, without limitation,
the indemnification provisions of the first two paragraphs of this Section
5.08)or the Receipts to the contrary, neither the Company nor the Depositary,
nor any of their agents, shall be liable to the other for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except (i)
to
the extent such Special Damages arise from the gross negligence or willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Owners) against the Depositary or its agents,
except to the extent such Special Damages arise out of the gross negligence
or
willful misconduct of the party seeking indemnification hereunder.
SECTION
2.07. Section
5.09 of the Deposit Agreement and Article 7 of the form of Receipt are each
amended to read as follows:
3
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions, issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the American Depositary
Shares or the Deposited Securities, and (ii) each person surrendering
American Depositary Shares for withdrawal of Deposited Securities or whose
American Depositary Shares are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 American Depositary Shares (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share distributions, rights and other
distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Owners, by any party depositing or withdrawing
Shares, or by any party surrendering American Depositary Shares, to whom
American Depositary Shares are issued (including, without limitation, issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares), whichever is
applicable (i) an aggregate fee of U.S.$0.03 per American Depositary Share
(or
portion thereof) per calendar year for services performed by the depositary
in
administering the Receipts (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Owners of Receipts as of the
record date or record dates set by the depositary during each calendar year
and
shall be payable at the sole discretion of the Depositary by billing such Owners
or by deducting such charge from one or more cash dividends or other cash
distributions), (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the American Depositary Shares are listed, a fee
of
U.S.$1.50 per Receipt or Receipts for transfers made pursuant to paragraph
(3)
hereof, (iii) a fee for the distribution or sale of securities pursuant to
Article 4 of the Deposit Agreement, such fee being in an amount equal to the
fee
for the execution and delivery of American Depositary Shares referred to above
which would have been charged as a result of the deposit of such securities
(for
purposes of this [Section 5.09][Article 7] treating all such securities as
if
they were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Owners entitled
thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Owners in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Owners or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Owners delivering Shares, Receipts or Deposited Securities (which are payable
by such persons or Owners), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Owners withdrawing Deposited Securities;
there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the Custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Shares or
other Deposited Securities (which charge shall be assessed against Owners as
of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Owners or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary. The charges and expenses of the Custodian are for the sole
account of the Depositary.
4
The
Depositary, subject to [Section 2.09][Article 8] hereof, may own and deal
in, any class of securities of the Company and its affiliates and in
Receipts.
SECTION
2.08. Section
5.13 of the Deposit Agreement and Article 23 of the form of Receipt are each
amended to reflect the appointment of Open Joint Stock Company "Obiedinennaya
registratsionnaya companiya" (United Registration Company) as the Russian Share
Registrar or such other Russian Share Registrar reasonably acceptable to the
Depositary after no less than 45 days prior written notice to the Depositary
(except where the then current Russian Share Registrar ceases to be legally
permitted to provide registrar services, in which case the Depositary shall
receive sufficient prior notice so as to enable it to make a determination
on
the acceptance of such entity as a successor Russian Share
Registrar).
SECTION
2.09. The
addresses of the Depositary set forth in the second paragraph of Section 7.05
of
the Deposit Agreement are amended to read as follows:
JPMorgan
Chase Bank, N.A.
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
SECTION
2.10. References
in the form of Receipt to "JPMorgan Chase Bank, a New York banking corporation"
are replaced with "JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States of America".
5
SECTION
2.11. The
last
sentence of the first paragraph of Article 11 of the form of Receipt is amended
to read as follows:
Such
reports and communications will be available for inspection and copying by
Owners and Beneficial Owners at the public reference facilities maintained
by
the Commission located at
000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.12. The
form
of Receipt, reflecting the amendments set forth herein and some clarifying
amendments thereto is amended and restated to read as set forth as Exhibit
A
hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Depositary and the
Owners, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 as executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Russian Federation,
neither of such agreements need to be filed or recorded with any court or other
authority in the Russian Federation, nor does any stamp or similar tax need
to
be paid in the Russian Federation on or in respect of such agreements;
and
6
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
thirty days from the date notice hereof is first provided to Owners (the
"Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 5.08 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION
4.03. Governing
Law.
This
Amendment and the Receipts as amended hereby shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION
4.04. Outstanding Receipts.
Receipts
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of Receipt effected hereby, do not need to be called in for exchange
and may remain outstanding until such time as the Owners thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
7
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and
all
Owners shall become parties hereto by holding American Depositary Shares as
of
the Effective Date.
|
OPEN
JOINT STOCK COMPANY
|
|
|
URALSVYAZINFORM
|
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
8
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
|
AMERICAN
DEPOSITARY SHARES (Each American Depositary Share represents 200
deposited
Shares)
|
IT
IS
EXPECTED THAT SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE SHARE
REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR OF OPEN JOINT STOCK COMPANY
URALSVYAZINFORM IN THE NAME OF JPMORGAN CHASE BANK, N.A. AS 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 THE UNITED STATES 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 FEDERAL
COURTS OF THE UNITED STATES OF AMERICA OR XXX XXXXXX XX XXX XXXXX XX XXX
XXXX.
JPMORGAN
CHASE BANK, N.A.
AMERICAN
DEPOSITARY RECEIPT FOR
ORDINARY
SHARES OF
PAR
VALUE
OF 0,12 RUBLES EACH OF
OPEN
JOINT STOCK COMPANY URALSVYAZINFORM
(INCORPORATED
UNDER THE LAWS OF THE RUSSIAN FEDERATION)
JPMorgan
Chase Bank, N.A., a national banking association organized under the laws of
the
United States, as depositary (hereinafter called the "Depositary"), hereby
certifies that ________________________________________________________, or
registered assigns IS THE OWNER OF
_____________________________
1
AMERICAN
DEPOSITARY SHARES
representing
deposited ordinary shares in registered form, par value 0,12 Rubles each (herein
called "Shares") of Open Joint Stock Company Uralsvyazinform, incorporated
under
the laws of the Russian Federation (herein called the "Company"). The term
"Depositary" shall include the nominee of JPMorgan Chase Bank, N.A., in whose
name Shares are registered pursuant to the Deposit Agreement (as such term
is
hereinafter defined). At the date hereof, each American Depositary Share
represents 200 Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the Moscow, Russian
Federation, office of ING Bank (Eurasia) (Closed Joint Stock Company) (herein
called the "Custodian").
THE
DEPOSITARY'S OFFICE ADDRESS IS
0
XXX
XXXX XXXXX, XXX XXXX, XXX XXXX 00000
1. THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"),
all issued and to be issued upon the terms and conditions set forth in the
Amended
and Restated Deposit Agreement dated as of April 22, 2002 as further Amended
and
Restated as of December 15, 2002
(as
hereinafter amended from time to time, the "Deposit Agreement"), by and among
the Company, the Depositary, and 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
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 Depositary's Office of this Receipt accompanied by such
documents as the Depositary may require (including a purchase/sale contract
relating to the transfer of the Shares), and upon payment of the fee of the
Depositary provided in this Receipt, and subject to the terms and conditions
of
the Deposit Agreement, the Owner hereof is entitled to delivery, to him or
upon
his order, of the Deposited Securities at the time represented by the American
Depositary Shares for which this Receipt is issued. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates or other
documents evidencing title (including extracts from the Share Register) in
the
name of the Owner hereof or as ordered by him or properly endorsed or
accompanied by proper instruments of transfer and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt. The Depositary shall direct the Custodian or its agents to cause the
transfer and recordation by the Russian Share Registrar on the Share Register
of
the Shares being withdrawn in the name of such Owner or as directed by him
as
above provided, and the Company shall ensure that such transfer and recordation
is effected within 72 hours 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 Depositary's Office of any dividends or distributions with
respect to the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary. At
the
request, 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 Depositary's
Office. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile
transmission.
2
3. TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable without unreasonable delay on the books
of the Depositary at the Depositary's Office by the Owner hereof in person
or by
a duly authorized attorney, upon surrender of this Receipt properly endorsed
for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and
upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt
or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presenter
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and expenses as
provided in this Receipt, may require the production of proof satisfactory
to it
as to the identity and genuineness of any signature and may also require
compliance with 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.
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 will comply with
written instructions of the Company that the Depositary shall not accept for
deposit under the Deposit Agreement 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 in the United States.
4. LIABILITY
OF OWNER OR BENEFICIAL OWNERS 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
of
Receipts 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.
4
5. WARRANTIES
OF 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 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 or other information is filed or such
certificates are executed or such representations and warranties made. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to
the
Depositary that any necessary approval has been granted by any governmental
body
in the Russian Federation which is then performing the function of the
regulation of currency exchange.
5
7. CHARGES
OF DEPOSITARY.
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions, issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the American Depositary
Shares or the Deposited Securities, and (ii) each person surrendering
American Depositary Shares for withdrawal of Deposited Securities or whose
American Depositary Shares are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 American Depositary Shares (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share distributions, rights and other
distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Owners, by any party depositing or withdrawing
Shares, or by any party surrendering American Depositary Shares, to whom
American Depositary Shares are issued (including, without limitation, issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares), whichever is
applicable (i) an aggregate fee of U.S.$0.03 per American Depositary Share
(or
portion thereof) per calendar year for services performed by the depositary
in
administering the Receipts (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Owners of Receipts as of the
record date or record dates set by the depositary during each calendar year
and
shall be payable at the sole discretion of the Depositary by billing such Owners
or by deducting such charge from one or more cash dividends or other cash
distributions), (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the American Depositary Shares are listed, a fee
of
U.S.$1.50 per Receipt or Receipts for transfers made pursuant to paragraph
(3)
hereof, (iii) a fee for the distribution or sale of securities pursuant to
Article 4 of the Deposit Agreement, such fee being in an amount equal to the
fee
for the execution and delivery of American Depositary Shares referred to above
which would have been charged as a result of the deposit of such securities
(for
purposes of this Article 7 treating all such securities as if they were Shares)
but which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Owners entitled thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Owners in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Owners or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Owners delivering Shares, Receipts or Deposited Securities (which are payable
by such persons or Owners), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Owners withdrawing Deposited Securities;
there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the Custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Shares or
other Deposited Securities (which charge shall be assessed against Owners as
of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Owners or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The
Depositary, subject to Article 8 hereof, may own and deal in, any class of
securities of the Company and its affiliates and in Receipts.
6
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 and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or
its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and
for
the benefit of the Owners, and (iii) will not take any action with respect
to
such Shares or Receipts, as the case may be, that is inconsistent with such
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be) other
than
in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate, and may, with the prior
written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into under the Deposit Agreement with
any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of
the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for
the
avoidance of doubt, constitute Deposited Securities under the Deposit
Agreement).
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
7
The
Company shall have no liability to any Owner with respect to any
representations, actions or omissions by the Depositary, any 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 or 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 the State 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 a Receipt, unless
such holder is the Owner thereof.
10. VALIDITY
OF RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however, that such signature may be
a
facsimile if a Registrar for the Receipts shall have been appointed and such
Receipts are countersigned by the manual signature of a duly authorized officer
of the Registrar.
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 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
The
Depositary will make available for inspection by Owners of Receipts at the
Depositary's Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary will also send to Owners (i) copies of such reports when
furnished by the Company pursuant to Section 5.06 of the Deposit Agreement,
(ii) copies of any written communications provided to the Depositary by the
Russian Share Registrar pursuant to Section 5.13(b)(v) of the Deposit Agreement,
and (iii) copies of any notices given or required to be given by the
Depositary pursuant to Section 5.13(d) of the Deposit Agreement. Any such
reports and communications, including any such proxy soliciting material,
furnished to the Depositary by the Company shall be furnished in English to
the
extent such materials are required to be translated into English pursuant to
any
regulations of the Commission.
8
The
Depositary will keep books, at the Depositary's Office, for the registration
of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by the Owners of Receipts provided that such inspection shall
not
be for the purpose of communicating with Owners of Receipts in the interest
of a
business or object other than the business of the Company, including without
limitation a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS
AND DISTRIBUTIONS.
As
promptly as practicable after the Depositary receives any cash dividend or
other
cash distribution on any Deposited Securities, the Depositary will, if at the
time of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into Dollars and, after fixing a record
date in respect thereof pursuant to Section 4.06 of the Deposit Agreement,
shall, as promptly as practicable, distribute the amount thus received (net
of
the fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) to the Owners of Receipts entitled
thereto; provided, however, that in the event that the Company or the Depositary
is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject
to the provisions of Sections 4.11 and 5.09 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement, the
Depositary shall, as promptly as practicable, cause the securities or property
received by it to be distributed to the Owners of Receipts 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) shall 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 shall be unreasonably delayed by any
action of the Depositary or any of its agents.
9
If
any
distribution 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,
additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to
the
deposit of Shares and the issuance of American Depositary Shares evidenced
by
Receipts, including the withholding of any tax or other governmental charge
as
provided in Section 4.11 of the Deposit Agreement and the payment of the
fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary will
sell
the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.01 of the Deposit Agreement provided, however, that
no
distribution to Owners pursuant to Section 4.03 of the Deposit Agreement shall
be unreasonably delayed by any action of the Depositary of any action 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 determines, in its absolute discretion, it is, or may be, obligated
to withhold, the Depositary may by public or private sale dispose of all or
a
portion of such property (including Shares and rights to subscribe therefor)
in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes
or
charges to the Owners of Receipts entitled thereto. 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 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.
10
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 shall allocate the net proceeds of
such
sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise. Such proceeds shall 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 the
Deposit Agreement or this Receipt shall create any obligation on the part of
the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it may
be
lawful or feasible to make such rights available to Owners in general or any
Owner in particular
14. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, into the Depositary's foreign investment account
in the Russian Federation, and if at the time of the receipt thereof the foreign
currency so received can in the judgment of the Depositary be converted on
a
reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, 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 of the Deposit Agreement.
11
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 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 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 promptly be obtained, or if any such approval or license is not 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 the 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 entitled thereto.
15. RECORD
DATES.
The
Depositary shall fix a record date (a) for the determination of the Owners
who
shall be (i) entitled to receive a dividend, rights or other distribution or
the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any meeting of holders of Shares or other Deposited
Securities, (iii) obligated to pay any charge pursuant to Section 5.09(8) of
the
Deposit Agreement, (iv) entitled or obligated, as the case may be, to act in
respect of any other matter in connection with which the Depositary shall find
it necessary or convenient to set a record date, (b) for the determination
of
the date on or after which each American Depositary Share will represent a
different number of Shares pursuant to Section 4.08 of the Deposit Agreement,
and/or (c) for
the
determination of the Owners who shall be responsible for the fees assessed
by
the Depositary for administration of the Receipt program and for any expenses
provided for in Article 7 hereof.
12
Subject
to the provisions of Sections 4.01 through 4.05, 4.07, 4.08 and 5.09 of the
Deposit Agreement and to the other terms and conditions of the Deposit
Agreement, (x) the Owners on such record date, in proportion to the number
of
American Depositary Shares held by them respectively, shall, as the case may
be,
(i) be entitled to receive the amount distributable by the Depositary with
respect to such dividend, rights or other distribution or the net proceeds
of
sale thereof, (ii) be entitled to give voting instructions, (iii) be obligated
to pay such charge, and/or (iv) be entitled or obligated, as the case may be,
to
act in respect of any other such matter and (y) each American Depositary Share
on and after such record date will represent such changed number of
Shares.
16. VOTING
OF
DEPOSITED SECURITIES.
As
soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, , the Depositary shall mail to Owners a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Owner on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts and (c) the manner in
which
such instructions may be given. Upon receipt of instructions of a Owner on
such
record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented
by
the American Depositary Shares evidenced by such Owner's Receipts in accordance
with such instructions. The Depositary shall not vote or attempt to exercise
the
right to vote that attaches to the Shares or other Deposited Securities, other
than in accordance with such instructions. Deposited Securities underlying
American Depositary Shares for which no voting instructions have been received
from Owners shall not be counted as being present for the calculation of a
quorum at any meeting of the Company.
At
the
request of the Company, the Depositary shall deliver, at least two business
days
prior to the date of such meeting, a schedule of all instructions received
from
Owners in accordance with which the Depositary will vote or cause to be voted,
the Deposited Securities represented by the American Depositary Shares evidenced
by such Receipts at such meeting and corresponding information indicating the
number of copies of instructions to be delivered and the period of time that
is
required by the Depositary to furnish copies of all such information and the
Company and the Depositary will agree upon a schedule for such delivery and
the
costs to be paid therefor by the Company. Delivery of instructions will be
made
at the expense of the Company (unless otherwise agreed in writing by the Company
and the Depositary).
13
The
Company agrees to make the notice and any solicitation material for any such
meeting available to Beneficial Owners in a timely manner, and in any event
no
less than 28 days prior to the date of the relevant meeting of holders of
Shares, in order to allow such Beneficial Owners to provide voting instructions
to the relevant Owner. For the avoidance of doubt, it is agreed that the Company
shall bear the sole responsibility for distributing any notices and solicitation
materials to Beneficial Owners pursuant to the foregoing procedures, and the
Depositary shall assist the Company in conducting such distribution and shall
not be liable for the failure of the Company to do so or to do so in a timely
manner. The Company and the Depositary agree to cooperate with each other in
connection with the voting procedures described in this Article 16.
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 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.
14
18. LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
of any Receipt, if by reason of any provision of (a) any present or future
law
or regulation of the United States, the Russian Federation or any other country,
or of any other 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 the Deposit Agreement it
is
provided shall be done or performed (including, in the case of the Depositary,
delivery of any Deposited Securities or distribution of cash or property in
respect thereof pursuant to Articles 12 and 13 hereof); nor shall the Depositary
or the Company or any of their respective directors, employees, agents or
affiliates incur any liability to any Owner or Beneficial Owner of a Receipt
by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement. Where, by
the
terms of a distribution pursuant to Sections 4.01, 4.02 or 4.03 of the
Deposit Agreement, or an offering or distribution pursuant to Section 4.04
of the Deposit Agreement, 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. 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, 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 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
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or Beneficial 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 counsel for
Russian legal issues and recognized counsel of any other jurisdiction for legal
issues with respect to that jurisdiction. 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 agrees to indemnify the
Depositary, any Custodian, and their respective directors, employees, agents
and
affiliates and any Custodian against, and hold each of them harmless from,
any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of (a) any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities
or
the offer or sale thereof, or out of acts performed or omitted, in accordance
with the provisions of the Deposit Agreement and of the Receipts, as the same
may be amended, modified, or supplemented from time to time, (i) by either
the
Depositary or a Custodian or their respective directors, employees, agents
and
affiliates, except for any liability or expense arising out of the negligence
or
bad faith of either of them and except to the extent that such liability or
expense arises out of information relating to the Depositary or the Custodian,
as applicable, furnished in writing to the Company by the Depositary or the
Custodian, as applicable, expressly for use in any registration statement,
proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) relating to the Shares, or omissions from
such
information, 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 the Deposit Agreement) of a Receipt
or Receipts in accordance with Section 2.09 of the Deposit Agreement and which
would not otherwise have arisen had such Receipt or Receipts not been the
subject of a Pre-Release pursuant to Section 2.09 of the Deposit Agreement;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any liability or expense (i) to the extent that such liability
or
expense would have arisen had a Receipt or Receipts not been the subject of
a
Pre-Release, or (ii) which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer of sale of American
Depositary Shares, except to the extent any such liability or expense arises
out
of (A) information relating to the Depositary or any Custodian (other than
the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents,
or,
(B) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading. Neither the Company
nor the Depositary nor any of their respective agents shall be liable to Owners
or Beneficial Owners for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of the Deposit Agreement.
15
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 in any respect which they
may
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees and cable, telex or facsimile transmission costs, delivery costs or other
such expenses), or which shall otherwise prejudice any substantial existing
right of Owners of Receipts, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty (30) 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 thirty (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 thirty (30) days after the date
thereof, if at any time thirty (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 Depositary's Office and (b) payment of any applicable taxes
or
governmental charges and the fees and expenses of the Depositary, including
the
fee of the Depositary for the surrender of Receipts referred to in Article
7
hereof, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt in the manner provided in Section 2.05 of the Deposit Agreement.
If
any Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof,
and
shall not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights and
other property as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable
taxes
or governmental charges). At any time after the expiration of one year from
the
date of termination, the Depositary may sell the Deposited Securities then
held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of
the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such
net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for
the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges) 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.
16
22.
ARBITRATION; WAIVER OF IMMUNITIES.
The
Deposit Agreement provides that any controversy, claim or cause of action
brought (i) by any party to the Deposit Agreement against the Company or (ii)
by
the Company against the Depositary, arising out of or relating to the Shares
or
other Deposited Securities, the American Depositary Shares, the Receipts or
the
Deposit Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the London Court of International Arbitration
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 that relates to or is based
upon
the provisions of the Federal securities laws of the United States or the rules
and regulations promulgated thereunder may, but need not, be submitted to
arbitration as provided in the Deposit Agreement. The Deposit Agreement further
provides that any controversy, claim or cause of action arising out of or
relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement not subject to arbitration above
shall be litigated in the Federal and state courts in the Borough of
Manhattan.
17
To
the
extent that the Company or any of its properties, assets or revenues may have
or
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or other legal process or proceeding for the giving of any relief
or
for the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time be commenced, with respect to its obligations, liabilities
or
any other matter under or arising out of or in connection with the Shares or
Deposited Securities, the American Depositary Shares, the Receipts or the
Deposit Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
23. REGISTRATION
OF SHARES; RUSSIAN SHARE REGISTRAR; SHARE REGISTER.
(a) The
Company has designated and appointed Open Joint Stock Company "Obiedinennaya
registratsionnaya companiya" (United Registration Company) 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 such
documents and instruments, as may be necessary to continue the designation
and
appointment of a Russian Share Registrar in full force and effect for so long
as
any American Depositary Shares or Receipts remain outstanding or this Agreement
remains in force.
(b) 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 the 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);
18
(iii)
ensure that the Russian Share Registrar promptly (and, in the event, within
72
hours after receipt from the Custodian or any of its agents of such documents
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 the Deposit
Agreement;
(iv)
permit and cause the Russian Share Registrar to permit the Depositary or the
Custodian to register any Shares or other Deposited Securities held hereunder
in
the name of the Depositary, the Custodian or their respective nominees (which
may, but need not be, a non-resident of the Russian Federation);
and
(v)
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
re-register shares of the Company in the name of a particular purchaser and
such
purchaser (or its respective seller) alleges that such refusal is unlawful;
(D)
holds shares of the Company for its own account; or (E) has materially breached
the provisions of the Deposit Agreement relating to it (including, without
limitation, Section 5.13 thereof) and has failed to cure such breach within
a reasonable time.
(c) 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 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 has agreed in the Deposit Agreement that the Depositary or the
Custodian will regularly (and in any event not less than monthly) confirm the
number of Deposited Securities registered in the name of the Depositary, the
Custodian or their respective nominees, as applicable, pursuant to the terms
of
the Deposit Agreement. The Company and the Depositary have agreed in the Deposit
Agreement that, for purposes of the rights and obligations under the Deposit
Agreement and this Receipt of the parties thereto and hereto, the records of
the
Depositary and the Custodian shall be controlling for all purposes with respect
to the number of Shares or other Deposited Securities which should be registered
in the name of the Depositary, the Custodian or their respective nominees,
as
applicable, pursuant to the terms of the Deposit Agreement. The Depository
agrees that it will instruct the Custodian to maintain custody of all duplicate
share extracts (or other evidence of verification) provided to the Depositary,
the Custodian or their respective agents 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 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 has agreed that (whether or not it has received any notification
from the Depositary) it will (i) use its best efforts to cause the Russian
Share
Registrar to reconcile its records to the records of the Depositary or the
Custodian and to make such corrections or revisions in the Share Register as
may
be necessary in connection therewith, and (ii) to the extent the Company is
unable to so cause such records to be so reconciled, 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.
19
24. DISCLOSURE
OF INTERESTS.
The
Company or, on the request of the Company, the Depositary may from time to
time
request Owners to provide information as to the capacity in which such Owners
own or owned Receipts and regarding the identity of any other persons then
or
previously having a beneficial interest in such Receipts and the nature of
such
interest and various other matters. Each Owner agrees to provide any information
requested pursuant to this Article 24. The Depositary agrees to comply with
reasonable written instructions received from time to time from the Company
requesting that the Depositary forward any such requests to the Owners and
to
forward to the Company any such responses to such requests received by the
Depositary. To the extent that provisions of or governing any Deposited
Securities (including the Company's Charter or applicable law) may require
the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Company may instruct the Depositary to shall use its reasonable efforts
under the circumstances to comply with the Company instructions as to Receipts
in respect of any such enforcement or limitation, and Owners and Beneficial
Owners shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
Company instructions; provided, however, the Company acknowledges that no such
instructions shall be provided to the Depositary with respect to any Receipts
registered in the name of The Depository Trust Company or its nominee.
20
