PUBLIC JOINT-STOCK COMPANY "SOUTHERN TELECOMMUNICATIONS COMPANY"
AND
JPMORGAN CHASE BANK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of April 22, 2002
as further Amended and Restated as of December 15, 2002
TABLE OF CONTENTS
Page
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PARTIES........................................................................................... 1
RECITALS.......................................................................................... 1
ARTICLE 1.
DEFINITIONS
SECTION 1.01. American Depositary Shares..................................................... 2
SECTION 1.02. Beneficial Owner............................................................... 2
SECTION 1.03. Commission..................................................................... 2
SECTION 1.04. Company........................................................................ 2
SECTION 1.05. Custodian...................................................................... 2
SECTION 1.06. Deliver, execute, issue et al.................................................. 2
SECTION 1.07. Deposit Agreement.............................................................. 2
SECTION 1.08. Depositary; Depositary's Office................................................ 3
SECTION 1.09. Deposited Securities........................................................... 3
SECTION 1.10 Direct Registration Receipt ................................................... 3
SECTION 1.11 Direct Registration System..................................................... 3
SECTION 1.12. Dollars; Rubles................................................................ 3
SECTION 1.13. Owner.......................................................................... 3
SECTION 1.14. Receipts....................................................................... 3
SECTION 1.15. Registrar...................................................................... 3
SECTION 1.16. Restricted Securities.......................................................... 4
SECTION 1.17. Russian Share Registrar........................................................ 4
SECTION 1.18. Securities Act of 1933......................................................... 4
SECTION 1.19. Share Register................................................................. 4
SECTION 1.20. Shares......................................................................... 4
ARTICLE 2.
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts........................................... 4
SECTION 2.02. Deposit of Shares.............................................................. 6
SECTION 2.03. Execution and Delivery of Receipts............................................. 7
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts..................... 8
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares................................. 8
SECTION 2.06. Limitations on Execution and Delivery, Transfer and Surrender of Receipts...... 10
SECTION 2.07. Lost Receipts, etc............................................................. 10
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts........................... 11
SECTION 2.09. Pre-Release of Receipts........................................................ 11
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information.............................. 12
SECTION 3.02. Liability of Owner or Beneficial Owner for Taxes............................... 12
SECTION 3.03. Warranties on Deposit of Shares................................................ 12
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions............................................................. 13
SECTION 4.02. Distributions Other Than Cash, Shares or Rights................................ 13
SECTION 4.03. Distributions in Shares........................................................ 14
SECTION 4.04. Rights......................................................................... 14
SECTION 4.05. Conversion of Foreign Currency................................................. 16
SECTION 4.06. Fixing of Record Date.......................................................... 17
SECTION 4.07. Voting of Deposited Securities................................................. 17
SECTION 4.08. Changes Affecting Deposited Securities......................................... 18
SECTION 4.09. Records........................................................................ 19
SECTION 4.10. Lists of Owners................................................................ 19
SECTION 4.11. Withholding.................................................................... 19
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary..................... 20
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the Company............ 20
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company................... 21
SECTION 5.04. Resignation and Removal of the Depositary...................................... 22
SECTION 5.05. The Custodian.................................................................. 23
SECTION 5.06. Notices and Reports............................................................ 23
SECTION 5.07. Distribution of Additional Shares, Rights, etc................................. 24
SECTION 5.08. Indemnification................................................................ 24
SECTION 5.09. Charges of Depositary.......................................................... 25
SECTION 5.10. Retention of Depositary Documents.............................................. 26
SECTION 5.11. Exclusivity.................................................................... 26
SECTION 5.12. List of Restricted Securities Owners........................................... 26
SECTION 5.13. Registration of Shares; Russian Share Registrar; Share Register................ 26
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment...................................................................... 29
SECTION 6.02. Termination.................................................................... 29
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01. Counterparts................................................................... 30
SECTION 7.02. No Third Party Beneficiaries................................................... 31
SECTION 7.03. Severability................................................................... 31
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding Effect........................ 31
SECTION 7.05. Notices........................................................................ 31
SECTION 7.06. Arbitration; Settlement of Disputes............................................ 32
SECTION 7.07. Submission to Jurisdiction; Appointment of Agent for Service of Process........ 33
SECTION 7.08. Waiver of Immunities........................................................... 33
SECTION 7.09. Governing Law.................................................................. 34
SECTION 7.10. Amendment and Restatement of Old Deposit Agreement............................. 34
EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of April 22, 2002 as
further Amended and Restated as of December 15, 2002 among PUBLIC JOINT-STOCK
COMPANY "SOUTHERN TELECOMMUNICATIONS COMPANY", incorporated under the laws of
the Russian Federation (herein called the Company), JPMORGAN CHASE BANK, a New
York banking corporation (herein called the Depositary), and all Owners and
Beneficial Owners from time to time of American Depositary Receipts issued
hereunder.
WITNESSETH:
WHEREAS, the Company and The Bank of New York entered into a Deposit
Agreement in 1998 (the "Old Deposit Agreement") to provide for the deposit of
Shares of the Company with The Bank of New York or with the Custodian as agent
of The Bank of New York for the purposes set forth in such Old Deposit
Agreement, for the creation of American depositary shares representing the
Shares so deposited and for the execution and delivery of American depositary
receipts ("Old Receipts") evidencing the American depositary shares;
WHEREAS, pursuant to the terms of Section 5.04 of the Old Deposit
Agreement, the Company has removed The Bank of New York as depositary and has
appointed JPMorgan Chase Bank as successor depositary thereunder;
WHEREAS, the Company and JPMorgan Chase Bank, in its capacity as
successor depositary under the Old Deposit Agreement, now wish to amend and
restate the Old Deposit Agreement and the Old Receipts;
WHEREAS, the Company desires to further 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 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:
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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 Shares of common stock, 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. 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 1.04. Company. The term "Company" shall mean PUBLIC JOINT-STOCK
COMPANY "SOUTHERN TELECOMMUNICATIONS COMPANY", incorporated under the laws of
the Russian Federation, and its successors.
SECTION 1.05. Custodian. The term "Custodian" shall mean the Moscow,
Russian Federation, office of ING Bank (Eurasia) (Closed Joint Stock Company) 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,
with the prior consent of the Company, 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 1.06. The terms "deliver", "execute", "issue", "register",
"surrender", "transfer" or "cancel", when used with respect to Direct
Registration Receipts, shall refer to an entry or entries or an electronic
transfer or transfers in the Direct Registration System.
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.
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SECTION 1.08. Depositary; Depositary's Office. The term "Depositary" shall
mean JPMorgan Chase Bank, a New York corporation and the nominee of the
Depositary in whose name Shares are registered pursuant to this Deposit
Agreement, and any successor as depositary hereunder. The term "Depositary's
Office", when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is 0 Xxxxx Xxxxxxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx.
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 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. The term "Direct Registration Receipt" means a Receipt, the
ownership of which is recorded on the Direct Registration System.
SECTION 1.11. The term "Direct Registration System" means the direct
registration system maintained by the Depositary, pursuant to which the
Depositary may record the ownership of uncertificated Receipts, which ownership
shall be evidenced by periodic statements issued by the Depositary to the Owners
entitled thereto.
SECTION 1.12. 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 1.13. 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 1.14. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares.
Receipts may be either in physical certificated form or Direct Registration
Receipts. Receipts in physical certificated form shall be 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.
References to "Receipts" shall include Direct Registration Receipts, unless the
context otherwise requires.
SECTION 1.15. 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.
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SECTION 1.16. 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 of 1933 in connection with the
offer and sale thereof in the United States, or which are subject to the 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 1.17. 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.
SECTION 1.18. 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 1.19. 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 1.20. Shares. The term "Shares" shall mean the common shares in
registered form, par value 0.33 Rubles each, of the Company 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. 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. No definitive 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, in the case of definitive
Receipts, and each Receipt issued
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through the Direct Registration System, in either case as hereinafter provided
and the transfer of each such Receipt shall be registered. Receipts in
certificated form 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.
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
required by the Depositary or required 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.
Notwithstanding anything in this Deposit Agreement or in the Receipt
to the
5
contrary, to the extent available, American Depositary Shares shall be evidenced
by Direct Registration Receipts, unless certificated Receipts are specifically
requested by the Owner and for no additional fee. Owners and Beneficial Owners
shall be bound by the terms and conditions of this Deposit Agreement and of the
form of Receipt, regardless of whether their Receipts are Direct Registration
Receipts or certificated Receipts.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed (in the case of certificated Receipts) or upon
delivery to the Depositary of 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,
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.
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 through the Direct Registration
System (or, if specifically requested, certificated 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) 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 (ii) all applicable taxes and governmental charges and
the fees and expenses of the Depositary, as provided in Section 5.09 hereof,
have been paid, (iii) the approval necessary for the establishment of the
American Depositary Receipt program has been granted by the governmental body in
the Russian Federation which is performing the function of the securities
regulation authority; and (iv) as a result of such deposit the total number of
the deposited Shares would not exceed the number of Shares allowed for the
deposit by the governmental body in the Russian Federation which is performing
the function of the securities regulation authority. If
6
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, 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.
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 execute and deliver at the
Depositary's 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 of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, and
7
of all taxes and governmental charges and fees payable in connection with such
deposit and the transfer of the Deposited Securities.
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 register transfers of Receipts on its transfer books from time to time,
upon receipt at the Depositary's Office of proper instruments of transfer or
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 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 appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer 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.
At the request of an Owner, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Direct Registration Receipt, or vice
versa, execute and deliver a certificated Receipt or a Direct Registration
Receipt, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or Direct Registration
Receipt, as the case may be, substituted.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares. Upon receipt
at the Depositary's Office or at such other offices as the Depositary may
designate of an Owner's written order directing the Depositary to cause the
Deposited Securities represented by the American Depositary Shares evidenced by
a Receipt to be withdrawn and delivered to or upon the written order of the
person or persons designated in such order along with a certificated Receipt
(properly endorsed in blank or accompanied by proper instruments of transfer in
blank, to the extent required by the Depositary) or, in the case of a Direct
Registration Receipt, proper instruments of transfer in blank, to
8
the extent required by the Depositary, in each case 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 fees and
expenses 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 conditions of this Deposit Agreement, 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 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 hereinafter provided without
unreasonable delay.
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
promptly effected. 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 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 a
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, the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt to the Depositary for delivery at the
Depositary's Office. Such
9
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
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 any regulations 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
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.
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
10
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.
SECTION 2.09. Pre-Release of Receipts. 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 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 are to
be delivered (the "Pre-Releasee") that such person, or its customer owns the
Shares or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) Business
Days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-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 from time to time for purposes of
general application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into hereunder 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 in connection with a 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 hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
11
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS
AND BENEFICIAL OWNERS OF RECEIPTS
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 may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof, evidence or other
information is filed or such certificates are executed or such representations
and warranties made.
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 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, 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.
12
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, subject to the provisions of Section 4.05, convert such
dividend or distribution into Dollars and shall 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. 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 Section 4.01., 4.03 or
4.04, the Depositary shall 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 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 registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in
13
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.
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 distribute 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. 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 rights to subscribe
for additional Shares or any rights of any other nature, the Depositary shall
have discretion as to the procedure to be followed in making such rights
available to any owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms of such
rights offering or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse. If at the time of the offering of any rights the Depositary determines in
its discretion that it is lawful and feasible to make such rights available to
all or certain Owners but not to other Owners, the Depositary may distribute to
any Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole
14
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 or 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
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and 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.
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.
15
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 thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars shall be distributed to the
Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may, in its sole
discretion, deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
16
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 (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 pursuant to Section 4.08 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. 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
17
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented by
the American Depositary Shares evidenced by such Owner's Receipts in accordance
with such instructions. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to the Shares or other Deposited Securities, other
than in accordance with such instructions. Deposited Securities underlying
American Depositary Shares for which no voting instructions have been received
from Owners shall not be counted as being present for the calculation of a
quorum at any meeting of the Company. At the request of the Company, the
Depositary shall deliver, at least two business days prior to the date of such
meeting, a schedule of all instructions received from Owners in accordance with
which the Depositary will vote or cause to be voted, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipts at such
meeting and corresponding information indicating the number of copies of
instructions to be delivered and the period of time that is required by the
Depositary to furnish copies of all such information and the Company and the
Depositary will agree upon a schedule for such delivery and the costs to be paid
therefor by the Company. Delivery of instructions will be made at the expense of
the Company (unless otherwise agreed in writing by the Company and the
Depositary). The Company agrees to make the notice and any solicitation material
for any such meeting available to Beneficial Owners in a timely manner, and in
any event no less than 28 days prior to the date of the relevant meeting of
holders of Shares, in order to allow such Beneficial Owners to provide voting
instructions to the relevant Owner. For the avoidance of doubt, it is agreed
that the Company shall bear the sole responsibility for distributing any notices
and solicitation materials to Beneficial Owners pursuant to the foregoing
procedures, and the Depositary shall assist the Company in conducting such
distribution and shall not be liable for the failure of the Company to do so or
to do so in a timely manner. The Company and the Depositary agree to cooperate
with each other in connection with the voting procedures described in this
Section 4.07.
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
reclassification of Deposited Securities, or upon any
18
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 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.
SECTION 4.09. Records. The Depositary shall make available for inspection
by Owners 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 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 or the Depositary, as agreed by
them in writing, furnish to it a list, as of the 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.
SECTION 4.11. Withholding. 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 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 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.
19
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 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, 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 or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
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, appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
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 the Deposited Securities it is provided shall be
done or performed (including, in the case of the Depositary, delivery of any
Deposited
20
Securities or 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. 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, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
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 without
negligence or bad faith.
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 advice of or information from
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, or, in the case of the Depositary only, legal counsel.
21
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.
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 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
22
predecessor; but such predecessor, nevertheless, upon payment of all sums due to
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. The Custodian may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the 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,
with the prior consent of the Company, shall, promptly after receiving such
notice, appoint a substitute custodian or custodians, 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, with
the prior consent of the Company, appoint a substitute or additional custodian
or custodians, each of which shall thereafter be one of the Custodians
hereunder. 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.
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
23
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 by the Company, the Depositary will arrange for the mailing at the
Company's or the Depositary's expense, as agreed to by them in writing, 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 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 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, 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.
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 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 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 arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of
24
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 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.
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 its
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 or 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 Sections 2.03,
4.03 or 4.04, and the surrender of Receipts pursuant to Sections 2.05 or 6.02,
(6) a fee of $0.02 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 $0.01 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
25
Share Registrar (which 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
any 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 JPMorgan
Chase Bank is acting as Depositary hereunder.
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 has designated and appointed Registrator-Svyaz, 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 such documents and instruments, as may be
necessary to continue
26
such designation and appointment in full force and effect for so long as any
American Depositary Shares or Receipts remain outstanding hereunder or this
Agreement remains in force.
(b) The Company agrees that it shall, at any time and from time to
time:
(i) take any and all action as may be necessary to assure the
accuracy and completeness of all information set forth in the
Share Register maintained by the Russian Share Registrar in
respect of the Shares or Deposited Securities;
(ii) provide or cause the Russian Share Registrar to provide to the
Depositary, the Custodian or their respective agents unrestricted
access to the Share Register during ordinary business hours in
Moscow, Russian Federation, in such manner and upon such terms
and conditions as the Depositary may, in its sole discretion,
deem appropriate, to permit the Depositary, the Custodian or
their respective agents to regularly (and in any event not less
than monthly) confirm the number of Deposited Securities
registered in the name of the Depositary, the Custodian or their
respective nominees, as applicable, pursuant to the terms of 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) cause the Russian Share Registrar promptly (and in any event,
within 72 hours after receipt from the Custodian or any of its
agents of such documentation as may be required by applicable law
and the reasonable and customary regulations of the Russian Share
Registrar) to effect the re-registration of ownership of
Deposited Securities in the Share Register in connection with any
deposit or withdrawal of Shares or Deposited Securities under
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 non-resident of the Russian Federation);
and
(v) cause the Russian Share Registrar promptly to notify the
Depositary in writing at any time that the Russian Share
Registrar (A) eliminates the name of a
27
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 or 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 limitation, this Section 5.13); (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 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 liable for the unavailability
of Deposited Securities or for the failure of the Depositary to make any
distribution of cash or property with respect thereto as a result of (i) the
negligence or willful misconduct of the Company or its agents, including the
Russian Share Registrar, or their respective directors, employees, agents or
affiliates, (ii) any provision of any present or future Charter of the Company
or any other instrument of the Company governing the Deposited Securities, or
(iii) any provision of any securities issued or distributed by the Company, or
any offering or distribution thereof.
(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 records of the Depositary or the
28
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. Except for amendments to Section 5.13(a), 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. Section 5.13(a) may be amended by
the Company without the consent of the Depositary upon thirty days' prior
written notice to Owners of outstanding Receipts as specified in the next
succeeding sentence. 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 ninety
(90) 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,
if at any time ninety (90) days shall have expired after the Depositary shall
have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04. On and after the date of termination, the Owner of
a
29
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 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 (1) 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). 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.
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.
30
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 Public
Joint-Stock Company "Southern Telecommunications Company", 00 Xxxxxxxxxxxx Xx.,
Xxxxxxxxx 000000 Russian Federation, Attention: Deputy General Director Xx.
Xxxxxx X. Xxxxxxxx, Facsimile: (+7 8612) 53 20 30., 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
JPMorgan Xxxxx Xxxx, 0 Xxxxx Xxxxxxxxx Plaza, 40th Floor, New York, New York
10081, Attention: American Depositary Receipt Administration, or any other place
to which the Depositary may have transferred the Depositary's Office.
Any and all notices to be given to any Owner 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 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 post-
31
office 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. 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 settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award referred by the arbitrators may be entered in any court having
jurisdiction thereof; provided, that in the event of any third-party litigation
to which the Depositary is a party and to which the Company may properly be
joined, the Company may be so joined in any court in which such litigation is
proceeding; and provided further that any such controversy, claim or cause of
action 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 The City of New York, State of
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 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 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.
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.
32
(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 Xxxxxxx &
Associates, presently having its office at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 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) 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 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
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 five (5) 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 jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter arising out of
or in connection with the Shares or 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.
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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. Amendment and Restatement of Old Deposit Agreement.
The Deposit Agreement amends and restates the Old Deposit Agreement in its
entirety to consist exclusively of the Deposit Agreement, and each Old Receipt
is hereby deemed amended and restated to substantially conform to the form of
Receipt set forth in Exhibit A annexed hereto, except that, to the extent any
portion of either such amendment and restatement would prejudice any substantial
existing right of owners of Old Receipts, such portion shall not become
effective as to such owners until one month after such owners shall have
received notice thereof, such notice to be conclusively deemed given upon the
mailing to such owners of notice of such amendment and restatement which notice
contains a provision whereby such owners can receive a copy of the form of
Receipt.
34
IN WITNESS WHEREOF, PUBLIC JOINT-STOCK COMPANY "SOUTHERN
TELECOMMUNICATIONS COMPANY" and JPMORGAN CHASE BANK 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.
PUBLIC JOINT-STOCK COMPANY
"SOUTHERN TELECOMMUNICATIONS
COMPANY"
By:
------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: General Director
JPMORGAN CHASE BANK, as Depositary
By:
------------------------------
Name:
Title:
35
EXHIBIT A
AMERICAN DEPOSITARY SHARES (Each
American Depositary Share represents fifty deposited
Shares)
IT IS EXPECTED THAT SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE
SHARE REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR IN THE NAME OF THE
DEPOSITARY OR ITS NOMINEE OR OF THE CUSTODIAN OR ITS NOMINEE. OWNERS AND
BENEFICIAL OWNERS SHOULD BE AWARE, HOWEVER, THAT RUSSIA'S SYSTEM OF SHARE
REGISTRATION AND CUSTODY CREATES CERTAIN RISKS OF LOSS THAT ARE NOT
NORMALLY ASSOCIATED WITH INVESTMENTS IN OTHER SECURITIES MARKETS. THE
DEPOSITARY WILL NOT BE LIABLE FOR THE UNAVAILABILITY OF SHARES, OR FOR THE
FAILURE TO MAKE ANY DISTRIBUTION OF CASH OR PROPERTY WITH RESPECT THERETO
AS A RESULT OF SUCH UNAVAILABILITY.
THE DEPOSITARY HAS BEEN ADVISED BY RUSSIAN COUNSEL THAT COURTS IN THE
RUSSIAN FEDERATION WILL NOT RECOGNIZE OR ENFORCE JUDGMENTS OBTAINED IN THE
NEW YORK COURTS.
JPMORGAN CHASE BANK
AMERICAN DEPOSITARY RECEIPT FOR
COMMON SHARES OF
THE PAR VALUE OF 0.33 RUBLES EACH OF
PUBLIC JOINT-STOCK COMPANY "SOUTHERN TELECOMMUNICATIONS
COMPANY"
(INCORPORATED UNDER THE LAWS OF THE RUSSIAN FEDERATION)
JPMorgan Chase Bank as depositary (hereinafter called the "Depositary"),
hereby certifies that __________________________________________, or registered
assigns IS THE OWNER OF_______________________
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AMERICAN DEPOSITARY SHARES
representing deposited common shares in registered form, par value 0.33 Rubles
each (herein called "Shares") of PUBLIC JOINT-STOCK COMPANY "SOUTHERN
TELECOMMUNICATIONS COMPANY", incorporated under the laws of the Russian
Federation (herein called the "Company"). The term "Depositary" shall include
the nominee of JPMorgan Chase Bank in whose name Shares are registered pursuant
to the Deposit Agreement (as such term is hereinafter defined). At the date
hereof, each American Depositary Share represents fifty Shares that is deposited
or subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the Moscow, Russian Federation, office of ING Bank (Eurasia) (Closed
Joint Stock Company) (herein called the "Custodian").
THE DEPOSITARY'S OFFICE ADDRESS IS
0 XXXXX XXXXXXXXX XXXXX, XXX XXXX, XXX XXXX 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the Amended and Restated Deposit Agreement, dated as of April 22, 2002 as
further Amended and Restated as of December 15, 2002 (as hereinafter amended
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and the Owners and Beneficial Owners from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners and Beneficial Owners of the Receipts
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Office in New York City and at
the office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
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
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upon his order, of the Deposited Securities at the time represented by the
American Depositary Shares for which this Receipt is issued. Delivery of such
Deposited Securities may be made by the delivery of (a) certificates or other
documents evidencing title (including extracts from the Share Register) in the
name of the Owner hereof or as ordered by him or properly endorsed or
accompanied by proper instruments of transfer and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt. The Depositary shall direct the Custodian or its agents to cause the
transfer and recordation by the Russian Share Registrar on the Share Register of
the Shares being withdrawn in the name of such Owner or as directed by him as
above provided, and the Company shall ensure that such transfer and recordation
is promptly effected. Upon such transfer and recordation, the Custodian shall
deliver at the Moscow, Russian Federation, office of the Custodian, subject to
Sections 2.06, 3.01 and 3.02 and the other terms and conditions of the Deposit
Agreement, to or upon the written order of the person or persons designated in
the order delivered to the Depositary as above provided, documents evidencing
title (including extracts from the Share Register) for the amount of Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, except that, if and to the extent practicable, the Depositary may make
delivery to such person or persons at the Depositary's Office of any dividends
or distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary. At the request and for the account of such Owner, the Depositary
shall direct the Custodian to forward any cash or other property (other than
rights) comprising, and forward a certificate or certificates and other proper
documents evidencing title for (as described above), the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt to the
Depositary for delivery at the Depositary's Office. Such direction shall be
given by letter or, at the request, risk and expense of such Owner, by cable,
telex or facsimile transmission.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at the Depositary's Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presenter
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and
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fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and expenses as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
The delivery of Receipts against deposit of Shares generally or
against deposit of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
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4. LIABILITY OF OWNER OR BENEFICIAL OWNERS OF TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
hereof to the Depositary, and such Owner or Beneficial Owner shall be deemed
liable therefor. In addition to any other remedies available to it, the
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner or Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner hereof shall remain
liable for any deficiency. The obligations of Owners and Beneficial Owners under
this Article 4 shall survive any transfer of Receipts pursuant to Section 2.04
of the Deposit Agreement, any surrender of Receipts and withdrawal of Deposited
Securities pursuant to Section 2.05 of the Deposit Agreement, or the termination
of the Deposit Agreement pursuant to Section 6.02 of the Deposit Agreement.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares and the Receipts evidencing American
Depositary Shares representing such Shares would not be Restricted Securities.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or such information relating to the registration on the books of the
Company or the Russian Share Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper. The Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. No Share
shall be accepted for deposit unless
A-5
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 its statement 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 Sections
2.03, 4.03 or 4.04, of the Deposit Agreement and the surrender of Receipts
pursuant to Sections 2.05 or 6.02 of the Deposit Agreement, (6) a fee of $0.02
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 $0.0l 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 of the Deposit Agreement 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
A-6
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, any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary
may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may,
pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom Receipts are to be delivered that such person,
or its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash, or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) Business Days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate, and
may, with the prior written consent of the Company, change such limit from time
to time for purposes of general application. The Depositary will also set Dollar
limits with respect to Pre-Release transactions to be entered into under the
Deposit Agreement with any particular Pre-Release on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to fulfill
its obligations to the Owners under the Deposit Agreement, the collateral
referred to in clause (b) above will be held by the Depositary in connection
with a Pre-Releasee's obligations to the Depositary in connection with a
Pre-Release transaction, including the Pre-Release obligation to deliver Shares
or Receipts upon termination of a Pre-Release transaction (and shall not, for
the avoidance of doubt, constitute Deposited Securities under the Deposit
Agreement).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
A-7
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title of this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New York, provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes and
neither the Depositary nor the Company will have any obligation or be subject to
any liability under the Deposit Agreement to any holder of this Receipt, unless
such holder is the Owner hereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual or facsimile signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended. Such reports and communications will be
available for inspection and copying by Owners and Beneficial Owners at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of
Receipts at the Depositary's Office any reports and communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also send to Owners of Receipts (i) copies of such
reports when furnished by the Company pursuant to Section 5.06 of the Deposit
Agreement, (ii) copies of any written communications provided to the Depositary
by the Russian Share Registrar pursuant to Section 5.13(b)(v) of the Deposit
Agreement, and (iii) copies of any notices given or required to be given by the
Depositary pursuant to Section 5.13(d) of the Deposit Agreement. Any such
reports and communications, including any such proxy soliciting material,
furnished to the Depositary by the
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Company shall be furnished in English to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission.
The Depositary will keep books, at the Depositary's Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.09 of the Deposit Agreement) to the Owners of Receipts
entitled thereto; provided, however, that in the event that the Company or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, the amount distributed to the Owners of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto, or
if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees and expenses of the Depositary as provided in Article 7 hereof and Section
5.09 of the Deposit Agreement) will be distributed by the Depositary to the
Owners of Receipts entitled thereto all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution
of, Shares, the Depositary may distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts
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evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees and expenses
of the Depositary as provided in Article 7 hereof and Section 5.09 of the
Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary will sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01 of the Deposit Agreement. If additional Receipts are not distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) or any deposit of
Shares, transfer of Receipts or withdrawal of Deposited Securities under the
Deposit Agreement is subject to any tax or other governmental charge which the
Depositary determines, in its absolute discretion, it is, or may be, obligated
to withhold, the Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights
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allocable to the American Depositary Shares of such Owner hereunder, the
Depositary will make such rights available to such Owner upon written notice
from the Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Owner has executed
such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Depositary had distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
Article 13, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If the Depositary determines, in its discretion, that it is not lawful
or feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and shall allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in the Deposit Agreement or this Receipt shall create any obligation on
the part of the Company to file a registration statement with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If an Owner of Receipts requests the distribution
of warrants or other instruments, notwithstanding that there has been no such
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registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, into the Depositary's foreign
investment account in the Russian Federation, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may, in its sole
discretion, deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such
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conversion and distribution in Dollars to the extent permissible to the Owners
entitled thereto and may distribute the balance of the foreign currency received
by the Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will represent the changes number of Shares, subject
to the provisions of the Deposit Agreement or (c) for the determination of the
Owners who shall be responsible for the fee assessed by the Depositary pursuant
to Article 7 hereof for inspection of the Share Register maintained by the
Russian Share Xxxxxxxxx.
00. 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
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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 Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts in accordance with such instructions. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions. Deposited Securities underlying American Depositary Shares for
which no voting instructions have been received from Owners shall not be counted
as being present for the calculation of a quorum at any meeting of the Company.
At the request of the Company, the Depositary shall deliver, at least
two business days prior to the date of such meeting, a schedule of all
instructions received from Owners in accordance with which the Depositary will
vote or cause to be voted, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipts at such meeting and corresponding
information indicating the number of copies of instructions to be delivered and
the period of time that is required by the Depositary to furnish copies of all
such information and the Company and the Depositary will agree upon a schedule
for such delivery and the costs to be paid therefor by the Company. Delivery of
instructions will be made at the expense of the Company (unless otherwise agreed
in writing by the Company and the Depositary).
The Company agrees to make the notice and any solicitation material
for any such meeting available to Beneficial Owners in a timely manner, and in
any event no less than 28 days prior to the date of the relevant meeting of
holders of Shares, in order to allow such Beneficial Owners to provide voting
instructions to the relevant Owner. For the avoidance of doubt, it is agreed
that the Company shall bear the sole responsibility for distributing any notices
and solicitation materials to Beneficial Owners pursuant to the foregoing
procedures, and the Depositary shall assist the Company in conducting such
distribution and shall not be liable for the failure of the Company to do so or
to do so in a timely manner. The Company and the Depositary agree to cooperate
with each other in connection with the voting procedures described in this
Article 16.
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17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification, reorganization, merger
or consolidation, or sale of assets affecting the Company or to which it is a
party, any securities which shall be received by the Depositary or a Custodian
in exchange for or in conversion of or in respect of Deposited Securities shall
be treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, the right to receive the new Deposited Securities so
received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may execute
and deliver additional Receipts as in the case of a dividend in Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of (a)
any present or future law or regulation of the United States or any other
country, or of any other governmental or regulatory authority, or by reason of
any act of God or war or other circumstances beyond its control, or (b) in the
case of the Depositary only, (i) any act or failure to act of the Company or its
agents, including the Russian Share Registrar, or their respective directors,
employees, agents or affiliates, (ii) any provision, present or future, of the
Charter of the Company or any other instrument of the Company governing the
Deposited Securities or (iii) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, the
Depositary or the Company shall be prevented, delayed or forbidden from or be
subject to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement or the Deposited
Securities it is provided shall be done or performed (including, in the case of
the Depositary, delivery of any Deposited Securities or distribution of cash or
property in respect thereof pursuant to Articles 12 and 13 hereof); nor shall
the Depositary or the Company or any of their respective directors, employees,
agents or affiliates incur any liability to any Owner or Beneficial Owner of a
Receipt by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of the Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.01, 4.02 or 4.03 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.04
of the Deposit Agreement, such distribution or offering may not be made
available to Owners, and the Depositary may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Depositary shall not make such distribution or offering, and
shall allow any rights, if applicable, to lapse. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Owners or Beneficial Owners of Receipts, except that (i)
the Company agrees
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to perform its obligations specifically set forth in the Deposit Agreement
without negligence or bad faith and (ii) the Depositary agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or inaction by it in
reliance upon the advice of or information from accountants, any person
presenting Shares for deposit, any Owner or Beneficial Owner of a Receipt, or
any other person believed by it in good faith to be competent to give such
advice or information or, in the case of the Depositary only, legal counsel. The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or inaction is in good faith. The Depositary shall not be liable for any
acts or omissions made by a successor depositary whether in connection with a
previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Depositary shall not be liable to the Company, any
Owner or Beneficial Owner or any other person for the unavailability of
Deposited Securities or for the failure to make any distribution of cash or
property with respect thereto as a result of (i) any act or failure to act of
the Company or its agents, including the Russian Share Registrar, or their
respective directors, employees, agents or affiliates, (ii) any provision of any
present or future law or regulation of the United States, the Russian Federation
or any other country, (iii) any provision of any present or future law or
regulation of the United States, the Russian Federation or any other country,
(iii) any provision of any present or future regulation of any governmental or
regulatory authority or stock exchange, (iv) any provision of any present or
future Charter of the Company or any other instrument of the Company governing
the Deposited Securities, (v) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or (vi) any
act of God or war or other circumstance beyond its control. The Company agrees
to indemnify the Depositary, any Custodian, and their respective directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
expenses of counsel) which may arise out of (a) any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof, or out of acts performed or omitted, in accordance
with the provisions of the Deposit Agreement and of the Receipts, as the same
may be amended, modified, or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising
A-16
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates, or (b) the
unavailability of Deposited Securities or the failure to make any distribution
of cash or property with respect thereto as a result of (i) any act or failure
to act of the Company or its agents, including the Russian Share Registrar, or
their respective directors, employees, agents or affiliates, (ii) any provision
of any present or future Charter of the Company or any other instrument of the
Company governing the Deposited Securities or (iii) any provision of any
securities issued or distributed by the Company, or any offering or distribution
thereof. 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, with the prior consent of the Company,
appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
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21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding, if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Depositary's Office and (b) payment of any
applicable taxes or governmental charges and the fees and expenses of the
Depositary, including the fee of the Depositary for the surrender of Receipts
referred to in Article 7 hereof, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in the manner provided in Section
2.05 of the Deposit Agreement. If any Receipts shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights and other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, the fees
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary with respect to
indemnification, charges, and expenses.
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22. ARBITRATION; WAIVER OF IMMUNITIES.
The Deposit Agreement provides that any controversy, claim or cause of
action brought by any party to the Deposit Agreement against the Company,
arising out of or relating to the Shares or other Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit Agreement, or the breach
thereof, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and that judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof; provided, that in the event of any third-party litigation
to which the Depositary is a party and to which the Company may properly be
joined, the Company may be so joined in any court in which such litigation is
proceeding; and provided further that any such controversy, claim or cause of
action that relates to or is based upon the provisions of the Federal securities
laws of the United States or the rules and regulations promulgated thereunder
may, but need not, be submitted to arbitration as provided in the Deposit
Agreement. The Deposit Agreement further provides that any controversy, claim or
cause of action arising out of or relating to the Shares or other Deposited
Securities, the American Depositary Shares, the Receipts or the Deposit
Agreement not subject to arbitration above shall be litigated in the Federal and
state courts in the Borough of Manhattan.
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of sovereign immunity, from any legal action, suit or proceeding, from the
giving of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, or other
legal process or proceeding for the giving of any relief or for the enforcement
of any judgment, in any jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or the Deposit
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, in any
such immunity and consents to such relief and enforcement.
23. REGISTRATION OF SHARES; RUSSIAN SHARE REGISTRAR; SHARE REGISTER.
(a) The Company has agreed in the Deposit Agreement that it shall, at
any time and from time to time:
A-19
(i) take any and all action as may be necessary to assure the accuracy
and completeness of all information set forth in the Share Register
maintained by the Russian Share Registrar in respect of the Shares or
Deposited Securities;
(ii) provide or cause the Russian Share Registrar to provide to the
Depositary, the Custodian or their respective agents unrestricted access to
the Share Register during ordinary business hours in Moscow, Russian
Federation, in such manner and upon such terms and conditions as the
Depositary may, in its sole discretion, deem appropriate, to permit the
Depositary, the Custodian or their respective agents to regularly (and in
any event not less than monthly) confirm the number of Deposited Securities
registered in the name of the Depositary, the Custodian or their respective
nominees, as applicable, pursuant to the terms of the Deposit Agreement
and, in connection therewith, to provide the Depositary, the Custodian or
their respective agents, upon request, with a duplicative extract from the
Share Register duly certified by the Russian Share Registrar (or some other
evidence of verification which the Depositary, in its sole discretion,
deems sufficient);
(iii) cause the Russian Share Registrar promptly (and in any event,
within 72 hours after receipt from the Custodian or any of its agents of
such documentation as may be required by applicable law and the reasonable
and customary regulations of the Russian Share Registrar) to effect the
re-registration of ownership of Deposited Securities in the Share Register
in connection with any deposit or withdrawal of Shares or Deposited
Securities under the Deposit Agreement;
(iv) permit and cause the Russian Share Registrar to permit the
Depositary or the Custodian to register any Shares or other Deposited
Securities held under the Deposit Agreement in the name of the Depositary,
the Custodian or their respective nominees (which may, but need not be, a
non-resident of the Russian Federation); and
(v) cause the Russian Share Registrar promptly to notify the
Depositary in writing at any time that the Russian Share Registrar (A)
eliminates the name of a shareholder of the Company from the Share Register
or otherwise alters a shareholder's interest in the Company's shares and
such shareholder alleges to the Company, the Russian Share Registrar or
publicly that such elimination or alteration is unlawful; (B) no longer
will be able materially to comply with, or has engaged in conduct that
indicates it will not materially comply with, the provisions of the Deposit
Agreement relating to it (including, without limitation, Section 5.13
thereof); (C) refuses to re-register shares of the Company in the name of a
particular purchaser and such purchaser (or its respective seller) alleges
that such refusal is unlawful; (D) holds shares of the Company for its own
account; or (E) has materially breached the provisions of
A-20
the Deposit Agreement relating to it (including, without limitation,
Section 5.13 thereof) and has failed to cure such breach within a
reasonable time.
(b) The Company has agreed in the Deposit Agreement that it shall be
liable for the unavailability of Deposited Securities or for the failure of the
Depositary to make any distribution of cash or property with respect thereto as
a result of (i) the negligence or willful misconduct of the Company or its
agents, including the Russian Share Registrar, or their respective directors,
employees, agents or affiliates, (ii) any provision of any present or future
Charter of the Company or any other instrument of the Company governing the
Deposited Securities, or (iii) any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof.
(c) The Depositary has agreed in the Deposit Agreement that the
Depositary or the Custodian will regularly (and in any event not less than
monthly) confirm the number of Deposited Securities registered in the name of
the Depositary, the Custodian or their respective nominees, as applicable,
pursuant to the terms of the Deposit Agreement. The Company and the Depositary
have agreed in the Deposit Agreement that, for purposes of the rights and
obligations under the Deposit Agreement and this Receipt of the parties thereto
and hereto, the records of the Depositary and the Custodian shall be controlling
for all purposes with respect to the number of Shares or other Deposited
Securities which should be registered in the name of the Depositary, the
Custodian or their respective nominees, as applicable, pursuant to the terms of
the Deposit Agreement. In the event of any material discrepancy between the
records of the Depositary or the Custodian and the Share Register, then, if an
officer of the ADR Department of the Depositary has actual knowledge of such
discrepancy, the Depositary will promptly notify the Company. In the event of
any discrepancy between the records of the Depositary or the Custodian and the
Share Register, the Company has agreed that (whether or not it has received any
notification from the Depositary) it will (i) use its best efforts to cause the
Russian Share Registrar to reconcile its records to the records of the
Depositary or the Custodian and to make such corrections or revisions in the
Share Register as may be necessary in connection therewith, and (ii) to the
extent the Company is unable to reconcile, promptly instruct the Depositary to
notify the Owners of the existence of such discrepancy. Upon receipt of such
instruction, the Depositary may at any time give such notification to the
Owners, whether or not it has received instructions from the Company) and will
promptly cease issuing Receipts pursuant to Section 2.02 of the Deposit
Agreement until such time as, in the opinion of the Depositary, such records
have been appropriately reconciled.
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