AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of June , 2008 (the "Amendment") to the Deposit Agreement dated as of September
4, 2001 (the "Deposit Agreement"), among Open Joint Stock Company “Far East
Telecommunications Company” (Dalsvyaz) (the "Company"), incorporated under the
laws of The Russian Federation, JPMorgan Chase Bank, N.A., as depositary (the
"Depositary"), and all Holders from time to time of American Depositary Receipts
("ADRs") issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (17) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms
of
the Deposit Agreement and ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or ▇▇▇▇▇▇ Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. Effective
thirty five days from the date notice of the amendment to paragraph (7) of
the
form of ADR has been first provided to Holders, Section 1(c) of the Deposit
Agreement is amended by replacing "30" with "5".
SECTION
2.04.
The
third
paragraph of Section 16 of the Deposit Agreement is deleted in its entirety
and
replaced with the following:
The
Depositary shall indemnify, defend and save harmless the Company against any
loss, liability or expense (including reasonable fees and expenses of counsel)
incurred by the Company in respect of this Deposit Agreement to the extent
such
loss, liability or expense is due to the negligence or bad faith of the
Depositary.
Notwithstanding
any other provision of this Deposit Agreement (including, without limitation,
the indemnification provisions of the first two paragraphs of this Section
16)
or the form of ADR to the contrary, neither the Company nor the Depositary,
nor
any of their agents, shall be liable to the other for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except (i)
to
the extent such Special Damages arise from the gross negligence or willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Holders) against the Depositary or its agents,
except to the extent such Special Damages arise out of the gross negligence
or
willful misconduct of the party seeking indemnification hereunder.
2
SECTION
2.05. The
addresses of the Depositary set forth in Section 17 of the Deposit Agreement
are
amended to read as follows:
JPMorgan
Chase Bank, N.A.
Four
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
SECTION
2.06. The
first
sentence of Section 19 of the Deposit Agreement is amended to reflect the
appointment of Open Joint Stock Company "Obiedinennaya registratsionnaya
companiya" (United Registration Company) as the Russian Share Registrar and
the
ability of the Company to appoint such other Russian Share Registrar reasonably
acceptable to the Depositary after no less than 45 days prior written notice
to
the Depositary (except where the then current Russian Share Registrar ceases
to
be legally permitted to provide registrar services, in which case the Depositary
shall receive sufficient prior notice so as to enable it to make a determination
on the acceptance of such entity as a successor Russian Share
Registrar).
SECTION
2.07. References
in
the form of ADR to "▇▇▇▇▇▇ Guaranty Trust Company, a New York corporation"
are
replaced with "JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States of America".
SECTION
2.08. Paragraph
(6) of the form of ADR is amended to include the following at the conclusion
thereof:
The
Company or, at the request of the Company, the Depositary may from time to
time
request Holders to provide information as to the capacity in which such Holders
own or owned ADRs and regarding the identity of any other persons then or
previously having a beneficial interest in such ADRs and the nature of such
interest and various other matters. Each Holder agrees to provide any
information requested by the Company or the Depositary pursuant to this
paragraph (6).
3
SECTION
2.09. Paragraph
(7) of the form of ADR is amended to read as
follows:
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (11)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares, or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (11)), whichever is applicable (i)
an
aggregate fee of U.S.$0.03 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against holders of ADRs as of the record date or record dates set by the
depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Holders or by deducting such charge from
one
or more cash dividends or other cash distributions), (ii) to the extent not
prohibited by the rules of the primary stock exchange upon which the ADSs are
listed, a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant to
paragraph (3) hereof, (iii) a fee for the distribution or sale of securities
pursuant to paragraph (11) hereof, such fee being in an amount equal to the
fee
for the execution and delivery of ADSs referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
paragraph (7) treating all such securities as if they were Shares) but which
securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the Custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
4
SECTION
2.10. The
last
sentence of paragraph (9) of the form of ADR is amended to
read
as
follows:
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at
▇▇▇
▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SECTION
2.11. Paragraph
(12) of the form of ADR is amended to read as follows:
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof, as well as for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only such Holders shall be
so
entitled or obligated.
5
SECTION
2.12. Paragraph
(15) of the form of ADR is amended to include the following immediately prior
to
the final sentence thereof:
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages.
SECTION
2.13. The
form
of ADR, reflecting the amendments set forth herein and
some
clarifying amendments thereto is amended and restated to read as set forth
as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and
warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 when executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Russian Federation,
neither of such agreements need to be filed or recorded with any court or other
authority in the Russian Federation, nor does any stamp or similar tax need
to
be paid in the Russian Federation on or in respect of such agreements (save
for
(1) the filing of the Deposit Agreement and this Amendment (together with their
Russian translations) with the Federal Service for the Financial Markets of
the
Russian Federation, which filings, in respect of the Deposit Agreement have
been
properly made by the Company, and in respect of this Amendment will be properly
made by the Company as soon as practicable, but in no event more than seven
business days, after the date hereof and (2) notary duties in connection with
the notarization of the Russian translations of these agreements for purpose
of
their filings with the Russian courts, which notaries have been properly
received by the Company in the case of the Deposit Agreement and, in the case
of
this Amendment will be properly received by the Company as soon as practicable,
but in no event more than seven business days, after the date hereof);
and
6
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and, except for the amendment
set forth in Section 2.03 which shall be effective in accordance with such
Section, shall be effective as of thirty days from the date notice hereof is
first provided to Holders (the "Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION
4.03. Governing
Law. This
Amendment and the ADRs as amended hereby shall be governed by and construed
in
accordance with the laws of the State of New York.
SECTION
4.04. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and
all
Holders shall become parties hereto by holding ADSs as of the Effective
Date.
7
| OPEN JOINT STOCK COMPANY “FAR EAST TELECOMMUNICATIONS COMPANY” (DALSVYAZ) | |
| JPMORGAN CHASE BANK, N.A. | |
| By:____________________________ | |
| Name: | |
| Title: |
8
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
| ________ | No. of ADSs: |
| Number | |
| __________________ | |
| Each ADS represents | |
| Five (5) Shares | |
| CUSIP: |
IT
IS
EXPECTED THAT THE SHARES DEPOSITED HEREUNDER WILL BE REGISTERED ON THE SHARE
REGISTER MAINTAINED BY THE RUSSIAN SHARE REGISTRAR OF OPEN JOINT STOCK COMPANY
“FAR EAST TELECOMMUNICATIONS COMPANY” (DALSVYAZ) IN THE NAME OF JPMORGAN CHASE
BANK, N.A. OR ITS NOMINEE OR OF THE CUSTODIAN OR ITS NOMINEE. HOLDERS AND
BENEFICIAL OWNERS SHOULD BE AWARE, HOWEVER, THAT RUSSIA'S SYSTEM OF SHARE
REGISTRATION AND CUSTODY CREATES CERTAIN RISKS OF LOSS THAT ARE NOT NORMALLY
ASSOCIATED WITH INVESTMENTS IN THE U.S. AND 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 FEDERAL
COURTS OF THE UNITED STATES OF AMERICA OR ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇.
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
OPEN
JOINT STOCK COMPANY “FAR EAST TELECOMMUNICATIONS COMPANY”
(DALSVYAZ)
(Incorporated
under the
laws
of
the Russian Federation)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that
___________ is the registered owner (a "Holder") of _____ American Depositary
Shares ("ADSs"), each (subject to paragraph (14)) representing five (5) shares
of common stock (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of OPEN JOINT STOCK COMPANY “FAR EAST
TELECOMMUNICATIONS COMPANY” (DALSVYAZ), a corporation organized under the laws
of the Russian Federation (the "Company"), deposited at the Moscow, Russian
Federation office of ING Bank (Eurasia) ZAO, as Custodian (subject to paragraph
(16), the "Custodian"), under the Deposit Agreement dated as of September 4,
2001 (as amended from time to time, the "Deposit Agreement") among the Company,
the Depositary and all Holders from time to time of American Depositary Receipts
issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes provisions set
forth
on the reverse hereof) shall be governed by and construed in accordance with
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.
(1) Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) other rights to receive
Shares (until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary,
(c)
holds such Shares for the account of the Depositary and (d) will deliver such
Shares to the Custodian as soon as practicable and promptly upon demand therefor
and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it reasonably deems appropriate. The Depositary may retain for its
own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian
and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares
are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized
so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such
Act.
(2) Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
(3) Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced
by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender
of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer and duly stamped as may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
reasonably deemed expedient by it or requested by the Company. At the request
of
a Holder, the Depositary shall, for the purpose of substituting a certificated
ADR with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR,
as
the case may be, substituted.
(4) Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. The issuance of ADRs, the acceptance of deposits of Shares,
the registration, registration of transfer, split-up or combination of ADRs
or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
(5) Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary also may deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems reasonably necessary and practicable
to
pay such taxes, by public or private sale, and the Depositary shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such taxes to the Holders entitled thereto.
(6) Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities (including
the Company's Charter or applicable law) may require disclosure of or impose
limits on beneficial or other ownership of Deposited Securities, other Shares
and other securities and may provide for blocking, transfer, voting or other
rights to enforce such disclosure or limits, Holders and all persons holding
ADRs agree to comply with all such disclosure requirements and ownership
limitations and to cooperate with the Depositary in the Depositary's compliance
with any Company instructions in respect thereof, and the Depositary will use
reasonable efforts to comply with such Company instructions. The Company or,
at
the request of the Company, the Depositary may from time to time request Holders
to provide information as to the capacity in which such Holders own or owned
ADRs and regarding the identity of any other persons then or previously having
a
beneficial interest in such ADRs and the nature of such interest and various
other matters. Each Holder agrees to provide any information requested by the
Company or the Depositary pursuant to this paragraph (6).
(7) Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (11)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares, or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (11)), whichever is applicable (i)
an
aggregate fee of U.S.$0.03 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against holders of ADRs as of the record date or record dates set by the
depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Holders or by deducting such charge from
one
or more cash dividends or other cash distributions), (ii) to the extent not
prohibited by the rules of the primary stock exchange upon which the ADSs are
listed, a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant to
paragraph (3) hereof, (iii) a fee for the distribution or sale of securities
pursuant to paragraph (11) hereof, such fee being in an amount equal to the
fee
for the execution and delivery of ADSs referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
paragraph (7) treating all such securities as if they were Shares) but which
securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto, and
(iv)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the Custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
(8) Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement through
any
agent appointed by it, provided that the Depositary shall notify the Company
of
such appointment and shall remain responsible for the performance of such
obligations as if no such agent were appointed. With respect to any and all
losses, damages, costs, judgments, expenses and other liabilities (including
reasonable attorneys' fees and expenses) (collectively referred to as "Losses")
incurred by any Holder or Beneficial Owner as a result of the acts or failure
to
act by such agent or attorney (or, in the case of the Custodian, only such
damages as are described below), the Depositary shall take appropriate action
to
recover such Losses from such agent or attorney and as promptly as practicable
shall distribute any amounts so recovered (exclusive of costs and expenses
incurred by the Depositary in connection with recovering such Losses which
are
not reimbursed by such agent or attorney, including, without limitation, the
Custodian) to the Holders and Beneficial Owners entitled thereto; and the
Depositary's sole responsibility and liability to such Holders and Beneficial
Owners shall be limited to amounts so received from such agent or attorney
(exclusive of costs and expenses incurred by the Depositary in connection with
recovering such Losses which are not reimbursed by such agent or attorney,
including, without limitation, the Custodian).
The
liability of the Custodian is set forth in the Custody Agreement between the
Depositary and the Custodian (the "Custody Agreement"). Under the terms of
the
Custodian Operating Agreement, the Custodian is only liable for its breach
of
the Custody Agreement, its negligence, willful default or fraud in connection
with the performance of its obligations thereunder and for loss of Shares or
funds held in custody under the Custody Agreement. In each case, the liability
of the Custodian with respect to the loss of Shares or funds will be limited
to
direct (but not indirect, including consequential) losses incurred by Holders
and Beneficial Owners.
Moreover,
only the Depositary, acting on behalf of Holders and Beneficial Owners, will
be
permitted to bring claims against the Custodian in respect of such losses
incurred by Holders and Beneficial Owners as a result of the acts of, or the
failure to act by, the Custodian. Any such claims by the Depositary against
the
Custodian will be resolved exclusively by arbitration. The Depositary agrees
to
promptly remit to Holders any amounts recovered from such claims (exclusive
of
costs and expenses incurred by the Depositary in connection with recovering
such
losses which are not reimbursed by the Custodian and net of any losses incurred
by the Depositary). The Depositary shall have no other responsibility or
liability to Holders or Beneficial Owners with respect to the acts of, or the
failure to act by, the Custodian or for the unavailability of the Shares or
the
failure to make any distribution of cash or property with respect thereto as
a
result of such unavailability.
The
liability of the Custodian for such losses incurred by Holders and Beneficial
Owners, the obligation of the Depositary to bring claims against the Custodian
for such losses and the method by which such claims may be brought are subject
to the terms and conditions of the Custody Agreement, a copy of which is
available from the Depositary upon the written request of any
Holder.
(9) Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will mail copies of such communications (or
English translations or summaries thereof) to Holders when furnished by the
Company.
The
Company furnishes the United States Securities and Exchange Commission (the
"Commission") with certain public reports and documents required by the laws
of
the Russian Federation or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and other information may be inspected and
copied at public reference facilities maintained by the Commission located
at
the date hereof at ▇▇▇
▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(10) Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| By | ||
| Authorized Officer | ||
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
[FORM
OF
REVERSE OF ADR]
(11) Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute by mail to each Holder entitled thereto on the record date set by
the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (11) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents (any fractional cents being withheld without liability for interest and
handled in accordance with the then current procedures of the
Depositary).
(12) Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof, as well as for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only such Holders shall be
so
entitled or obligated.
(13) 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 Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given.
Upon receipt of instructions of a Holder on such record date in the manner
and
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary 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 ADSs for which no voting instructions have been received
from Holders 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
Holders in accordance with which the Depositary will vote or cause to be voted,
the Deposited Securities represented by the ADSs evidenced by such ADRs 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 Holder. 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
paragraph (13).
(14) Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary, in its discretion, may amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in nominal value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution not distributed to Holders or
any
cash, securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR automatically shall represent its pro rata
interest in the Deposited Securities as then constituted.
(15) Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it or
them
(including, without limitation, voting pursuant to paragraph (13) hereof),
or
(ii) by reason of any exercise or failure to exercise any discretion given
it or
them in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its or their obligations to the extent they are specifically set forth
in this ADR and the Deposit Agreement without gross negligence or bad faith;
(c)
in the case of the Depositary and its agents, be under no obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its or their opinion may involve it or them in expense or liability,
unless indemnity satisfactory to it or them against all expense (including
fees
and disbursements of counsel) and liability be furnished as often as may be
required; or (e) not be liable for any action or inaction by it or them in
reliance upon the advice of or information from legal counsel, accountants,
any
person presenting Shares for deposit, any Holder, or any other person believed
by it or them to be competent to give such advice or information provided,
however,
that in
the case of the Company, advice of or information from legal counsel is from
recognized U.S. counsel for U.S. legal issues, recognized Russian counsel for
Russian legal issues and recognized counsel of any other jurisdiction for legal
issues with respect to that jurisdiction. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to
have
been signed or presented by the proper party or parties. The Depositary and
its
agents will not be responsible for any failure to carry out any instructions
to
vote any of the Deposited Securities (provided such action or omission is in
good faith), for the manner in which any such vote is cast or for the effect
of
any such vote. The Depositary and its agents may own and deal in any class
of
securities of the Company and its affiliates and in ADRs. The Depositary shall
not be liable to the Company, any Holder or Beneficial Owner or any other person
for the unavailability of the Deposited Securities or for the failure to make
any distribution of Cash or Other Distributions with respect thereto as a result
of (a) any act or failure to act of the Company or its agents, including the
Russian Share Registrar, or its or their respective directors, employees, agents
or affiliates, (b) any provision of any present or future law or regulation
of
the United States, the Russian Federation or any other country, (c) any
provision of any present or future regulation of any governmental or regulatory
authority or stock exchange, (d) any provision of any present or future Charter
of the Company or any other instrument of the Company governing Deposited
Securities or (e) any provision of any securities issued or distributed by
the
Company, or any offering or distribution thereof. The Company has agreed to
indemnify the Depositary and its agents under certain circumstances, and the
Depositary has agreed to indemnify the Company against losses incurred by the
Company to the extent such losses are due to the negligence or bad faith of
the
Depositary. Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof.
(16) Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary. The Depositary may appoint
substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(17) Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body should adopt
new laws, rules or regulations which would require amendment or supplement
of
the Deposit Agreement or the form of ADR to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
the
ADR at any time in accordance with such changed rules. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance.
(18) Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
(19) 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 ADSs, the ADRs
or
the Deposit Agreement, or the breach thereof, shall be referred to, and finally
settled by, arbitration in accordance with the Arbitration Rules of the London
Court of International Arbitration (the LCIA Rules) in effect on the date of
this Agreement, which Rules are deemed incorporated by reference into this
paragraph, 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 ADSs, the ADRs or
the
Deposit Agreement not subject to arbitration shall be litigated in the Federal
and state courts in the Borough of Manhattan. The Company has agreed in the
Deposit Agreement to appoint ▇▇▇▇▇▇▇ & Associates, presently having its
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
of America, as its agent for service of process.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
hereafter become entitled to, or have attributed to it, any right of immunity,
or the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or other legal process or proceeding or 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 ADSs, the ADRs or the Deposit Agreement, the Company,
to the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief and enforcement.
(20) Registration
of Shares; Russian Share Registrar; Share Register.
(a) The
Company has agreed in the Deposit Agreement that it shall, at any time and
from
time to time:
|
(i)
|
take
any and all action as may be necessary to assure the accuracy and
completeness of all information set forth in the Share Register maintained
by the Russian Share Registrar in respect of the Shares or Deposited
Securities;
|
|
(ii)
|
provide
or use its best efforts to 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,
the
Russian Federation, in such manner and upon such terms and conditions
as
the Depositary , in its reasonable discretion, may 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 reasonable discretion, deems
sufficient);
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(iii)
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use
its best efforts to cause the Russian Share Registrar promptly (and,
in
any event, within 72 hours of the Russian Share Registrar's receipt
of
such documentation as may be required by applicable law and the reasonable
and customary regulations of the Russian Share Registrar, or as soon
as
practicable thereafter) to effect the reregistration 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;
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(iv)
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permit
and use its best efforts to 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
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(v)
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use
its best efforts to 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 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,
Section 19); (C) refuses to re-register shares of the Company in
the name
of a particular purchaser and such purchaser (or its respective seller)
alleges that such refusal is unlawful; (D) holds Shares of the Company
for
its own account; or (E) has materially breached the provisions of
the
Deposit Agreement relating to it (including, without limitation,
Section
19) and has failed to cure such breach within a reasonable
time.
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(b) The
Company has agreed in the Deposit Agreement that it shall be solely liable
for
any act or failure to act on the part of the Russian Share Registrar, and that
the Company shall be solely liable for the unavailability of Deposited
Securities or for the failure of the Depositary to make any distribution of
cash
or property with respect thereto as a result of (i) any act or failure to act
of
the Company or its agents, including the Russian Share Registrar, or their
respective directors, employees, agents or affiliates, (ii) any provision of
any
present or future Charter of the Company or any other instrument of 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 confirm regularly (and in any event not less than monthly) 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 the purposes of the rights and obligations under the Deposit
Agreement and this ADR 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 the Depositary has actual knowledge of such
discrepancy, the Depositary will notify the Company promptly. 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 use its best efforts to (i) cause
the
Russian Share Registrar to reconcile its records to the records of the
Depositary or the Custodian and to make such corrections or revisions in the
Share Register as may be necessary in connection therewith and (ii) to the
extent the Company is unable to so reconcile such records, promptly instruct
the
Depositary to notify the Holders of the existence of such discrepancy. Upon
receipt of such instruction, the Depositary promptly will give such notification
to the Holders (it being understood that the Depositary may at any time give
such notification to the Owners, whether or not it has received instructions
from the Company) and will promptly cease issuing ADRs pursuant to the Deposit
Agreement until such time as, in the opinion of the Depositary, such records
have been appropriately reconciled.