• the Centerra shares have been accounted for as an asset on Kyrgyzaltyn’s financial statements;
• the Centerra shares have not been listed on the registry of state property maintained by the State Property Fund (the entity that manages the Republic’s shareholdings in companies such as Kyrgyzaltyn). There is no evidence of any accounting or other record that identifies the Centerra shares as assets of the Republic;
• all dividends on the Centerra shares have been paid by Centerra to Kyrgyzaltyn; and
• Kyrgyzaltyn attends and votes at meetings of Centerra shareholders.
Whereas, Cameco, directly or through its subsidiary Kumtor Mountain Corporation, which is in turn wholly owned by Cameco Gold Inc., a wholly-owned subsidiary of Cameco, and Kyrgyzaltyn, which holds shares in Centerra on behalf of the Government (Kyrgyzaltyn, together with the Government, the "Kyrgyz Side") are the largest shareholders in Centerra;
Cameco shall (out of its existing holding of Centerra common shares) deposit in escrow with the Custodian 25,300,000 common shares in Centerra (the "Cameco Contributed Shares") (without any off-setting, contribution, payment or issuance by Centerra in Cameco’s favor) to be held for the benefit of and on behalf of Kyrgyzaltyn and/or Cameco, as the case may be. The Cameco Contributed Shares shall be held and transferred by the Custodian as provided in this Agreement on New Terms and the Custodian Agreement.
On the Completion Date, the Treasury Shares shall be issued by Centerra to Kyrgyzaltyn so that Kyrgyzaltyn will beneficially own and be entitled to all the benefits arising from (including the exercise of all rights attaching to) such shares, subject only to the terms of this Agreement on New Terms and the Restated Shareholders’ Agreement.
• The Kyrgyz Side shall have no restrictions on the transfer or encumbrance of any Centerra common shares it holds... (Section 2.4(c));
• Any Centerra shares held by the Kyrgyz Side shall be subject to the provisions of Section 3.8 of the 2004 Shareholders Agreement... (Section 2.4(d));
• Nominees [to be elected to the Centerra board of directors] shall include two individuals selected by the Government..., provided, however, that (i) if the Kyrgyz Side’s ownership in Centerra is less than 10% but is greater than 5%, Centerra shall only be required to include one nominee selected by the Government...; and (ii) if the Kyrgyz Side’s ownership in Centerra is equal to or less than 5%, without limiting any rights the Kyrgyz Side may have as a shareholder under applicable law, Centerra shall not be required to include any nominees selected by the Government... (Section 3.3(a));
• The Restated Shareholders’ Agreement shall not include any restrictions of the transfer or encumbrance of any shares in Centerra held by the Kyrgyz Side other than as provided in this Agreement on New Terms. (Section 5.8(c)).
To authorize the open joint stock company "Kyrgyzaltyn", on behalf of the Government of the Kyrgyz Republic, to receive and hold shares in the company "Centerra Gold Inc." which are owned by the Government of the Kyrgyz Republic in accordance with the Agreement mentioned under 1 of this Resolution [the ANT], and to exercise other rights with regard to said shares.
ordinary shares received under the project "Kumtor" to the benefit of the Kyrgyz Republic from the company "Cameco Corporation" amounting to 25300000 and the additionally issued ordinary shares amounting to 18232615 shares, in the period before 1 July 2009.
• The fundamental principle is that agreements are construed in accordance with the parties’ intent, and the best evidence of what parties to a written agreement intend is what they say in their writing.
• A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide.
• Recitals in a contract do not control the operative clauses of the contract unless the latter are ambiguous. Where a recital clause and operative clause are inconsistent and the recital clause is clear, but the operative clause is ambiguous, the recital clause should prevail. Where a recital clause and an operative clause are inconsistent, the operative clause, if unambiguous, should prevail.10
• Disposition 610-p (2004). The Applicants rely on this Disposition, pursuant to which the Government ordered that all proceeds from the sale of 7.5 million Centerra shares be assigned to the state budget. The Republic responds that the actual text of Disposition 610-p simply directs the State Property Fund to "bring to the consideration of the general meeting of shareholders" of Kyrgyzaltyn the issue of allocating the proceeds to the state budget, and that this was done in accordance with the JSC Law and the Charter of Kyrgyzaltyn.
• Government Resolutions 239 and 247 (2006). Resolution 239 established a working group to address issues relating to the sale of the Centerra shares. Resolution 247 directed the State Property Fund to prohibit the sale of the Centerra shares without an appropriate Government resolution and to use the sale proceeds in the manner determined by the Government. The Republic argues that these acts are consistent with Kyrgyz law and the Republic’s rights as the sole shareholder of Kyrgyzaltyn.
• Establishment of Working Group (2007). In May 2007, the Prime Minister of the Republic created an expert group that considered options for transferring Centerra shares held by Cameco. On August 30, 2007, the Government passed Resolution 382, which approved a draft agreement on new terms. The parties to the draft agreement were the Government and Centerra, but not Kyrgyzaltyn. A recital to the agreement states "Cameco and the Government are the largest shareholders in Centerra". The resolution was ultimately declared null and void when the ANT was signed. The draft agreement was never signed.
• Disposition No. 495-r (2011). Disposition 495-r established an interagency commission to advise Kyrgyzaltyn’s shareholder on issues relating to the Centerra shares. The Republic argues that obtaining advice on a major asset of its subsidiary is consistent with the Republic’s role as the sole shareholder and that any proposals raised by the commission would have had to go through the usual decision-making procedures for Kyrgyzaltyn.
• Disposition 180-p (2011). The Applicants rely on Disposition 180-p, pursuant to which dividends declared by Centerra and received by Kyrgyzaltyn were transferred to the Government on account of "future dividends" on three occasions. The Applicants submit that this transfer was contrary to the JSC Law. The Republic argues that the Disposition only instructed the State Property Fund to put the issue of the transfer of dividends on the agenda for an extraordinary shareholders meeting of Kyrgyzaltyn, that there was nothing illegal about the arrangement, and that the dividends were treated as income of Kyrgyzaltyn, which paid tax on that income. The Republic also notes that the minutes of the 2012 shareholders meeting of Kyrgyzaltyn state "the shares of Centerra Gold Inc. belong to Kyrgyzaltyn JSC with the right of ownership; dividends received by Kyrgyzaltyn JSC on these shares belong to Kyrgyzaltyn JSC with the right of ownership".
• Statements of the Government in various resolutions, reports and news articles that refer to its interest in the Centerra shares.16 The Republic argues that these statements were made in a highly politicized context and that, in any event, none of these statements can have the legal effect of altering the property rights of Kyrgyzaltyn in the Centerra shares.17
• The conviction in 2016 of the former Chairman of Kyrgyzaltyn on criminal charges relating to a dividend paid to Centerra by its subsidiary. The Applicants point to statements made to the court in that proceeding that refer to the Government’s ownership of Centerra. The Republic argues that the case involved a charge of abuse of official duties and the court did not consider or determine the issue of the ownership of the Centerra shares.
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