AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT
by
and
among
AMER
SPORTS CORPORATION
as
Issuer
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated
as
of May , 2008
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of May , 2008 among AMER SPORTS
CORPORATION, a corporation organized and existing under the laws of the Republic
of Finland (herein called the “Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS,
an indirect wholly owned subsidiary of Deutsche Bank A.G.,, as depositary
(herein called the “Depositary”), and all Holders 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 dated
as
of September 27, 1993 (the “Original Deposit Agreement”);
WHEREAS,
the Company has appointed the Depositary as successor depositary under the
Original Deposit Agreement, and the Depositary has delivered an instrument
in
writing to The Bank of New York and the Company accepting that
appointment;
WHEREAS,
the Company and the Depositary now wish to amend and restate the Original
Deposit Agreement pursuant to Section 6.1 of the Original Deposit Agreement
in
the form of this amended and restated Deposit Agreement;
WHEREAS,
the Company and the Depositary desire to enter into this Deposit Agreement
to
provide, as hereinafter set forth, 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 (as hereinafter defined) 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, the parties hereto hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the following respective terms used in this Deposit
Agreement:
SECTION
1.1. The
term
“Company” shall mean Amer Sports Corporation, a corporation organized and
existing under the laws of the Republic of Finland, and its
successors.
SECTION
1.2. The
term
“Depositary” shall mean Deutsche Bank Trust Company Americas, an indirect wholly
owned subsidiary of Deutsche Bank A.G., in its capacity as depositary under
the
terms of this Deposit Agreement, and any successor depositary hereunder. The
term "Principal
Office"
when
used with respect to the Depositary, shall mean the principal office of the
Depositary at which at any particular time its depositary receipts business
shall be administered, which, at the date of this Deposit Agreement, is located
at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A .Principal.
SECTION
1.3. The
term
“Custodian” shall mean the principal Helsinki office of Nordea Bank Finland Plc,
as agent of the Depositary for purposes of this Deposit Agreement, and any
other
or additional firm or corporation which may hereafter be appointed by the
Depositary, with notice to and the approval of Company (which approval shall
not
be unreasonably withheld or delayed), pursuant to the terms of Section 5.5,
as
substitute custodian hereunder, as the context shall require, and the term
“Custodians” shall mean all such persons, collectively.
SECTION
1.4. The
term
“Deposit Agreement” shall mean this Agreement, as the same may be amended,
modified or supplemented from time to time in accordance with the provisions
hereof.
SECTION
1.5 The
term
“Shares” shall mean A-Shares, without nominal value, of the Company; provided,
however, that if there shall occur any change in nominal value, a split-up
or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.8, an exchange or conversion in respect of the A-Shares,
without nominal value, of the Company, the term “Shares” shall thereafter
represent the successor securities resulting from such change in nominal value,
split-up or consolidation or such other reclassification or such exchange or
conversion.
SECTION
1.6. 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 4.5.
SECTION
1.7. The
term
“Receipts” shall mean the American Depositary Receipts issued hereunder
evidencing American Depositary Shares, as the same may be amended, modified
or
supplemented from time to time in accordance with the provisions
hereof.
SECTION
1.8. The
term
“American Depositary Shares” shall mean the rights evidenced by the Receipts
issued hereunder, including the interests in the Deposited Securities
represented thereby. At the date hereof, two American Depositary Shares shall
represent one Share; provided, however, that if there shall occur a distribution
upon Deposited Securities covered by Section 4.3 or a change in Deposited
Securities covered by Section 4.8 with respect to which additional Receipts
are
not executed and delivered, the term “American Depositary Shares” shall
thereafter represent the number of Shares or Deposited Securities specified
in
such Sections.
2
SECTION
1.9. The
term
“Holder” shall mean the person in whose name a Receipt is registered on the
books of the Depositary maintained for such purpose.
SECTION
1.10. 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 by the Depositary
to register Receipts and transfer of Receipts as herein provided and shall
include any co-registrar appointed by the Depositary upon the request or with
the approval of the Company. The Depositary may act as Registrar
hereunder.
SECTION
1.11. The
term
“dollars” shall mean United States dollars.
SECTION
1.12. The
term
“Securities Act of 1933” shall mean the United States Securities Act of 1933, as
from time to time amended.
SECTION
1.13. The
term
“Securities Exchange Act of 1934” shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION
1.14. The
term
“Commission” shall mean the United States Securities and Exchange Commission or
any successor governmental agency in the United States.
SECTION
1.15. The
term
“Finland” shall mean the Republic of Finland.
SECTION
1.16. 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 other restrictions on sale or deposit under the laws of
the
Untied States or Finland, or under a shareholder agreement or the Articles
of
Association and By-laws of the Company.
SECTION
1.17. The
term
“FCSD” shall mean The Finnish Central Securities Depository Ltd or any successor
organization serving in the same capacity in Finland.
SECTION
1.18. The
term
“Book-Entry Account” shall mean an account kept in Book-Entry
Registers.
3
SECTION
1.19. The
term
“Book-Entry Register” shall mean the Book-Entry Registers maintained by
The
Finnish Central Securities Depository Ltd, Nordea Bank Finland Plc,
Skandinaviska Enskilda Banken, Svenska Handelsbanken AB (publ.) Finland Branch,
OKO Bank Plc, Evli Bank Plc, Sampo Bank Plc, Danske Bank A/S and/or any other
entity licensed under the laws of Finland, from time to time, as a Book-Entry
Register.
SECTION
1.20. "Deliver"
and "Delivery"
shall
mean, when used in respect of American Depositary Shares, Receipts, Deposited
Securities and Shares, the physical delivery of the certificate representing
such security, or the electronic delivery of such security by means of
book-entry transfer, as appropriate, including, without limitation, through
DRS/Profile. With respect to DRS/Profile ADRs, the terms "execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel"
refer
to applicable entries or movements to or within DRS/Profile.
SECTION
1.21. "DRS/Profile"
means
the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may
be
given to allow for the automated transfer of ownership between the books of
DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are evidenced by
periodic statements issued by the Depositary to the Holders entitled thereto.
SECTION
1.23. "Affiliate"
shall have the meaning assigned to such term by the Commission under Regulation
C promulgated under the Securities Act of 1933.
ARTICLE
II
FORM
OF
RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF
RECEIPTS
SECTION
2.1. 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. Receipts may be issued in denominations
of
any number of American Depositary Shares. 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 or facsimile signature of a duly authorized signatory of the
Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, 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.
4
In
addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications
not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform
with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the
date
of issuance of the underlying Deposited Securities or otherwise.
Notwithstanding
anything in this Deposit Agreement or in the Receipt to
the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless certificated
Receipts are specifically requested by the Holder. Holders and holders of
Receipts shall be bound by the terms and conditions of this Deposit Agreement
and of the form of Receipt, regardless of whether their Receipts are
certificated or issued through DRS/Profile.
Subject
to the limitations contained herein and in the form of Receipt, 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
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder 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 Holder
thereof.
The
rights of any Holder with respect to Deposited Securities shall be as set forth
in this Deposit Agreement and a Receipt shall not confer on a Holder any rights
against the Company or the Depositary or the Custodian except as fully provided
herein.
SECTION
2.2. Deposit
of Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to receive Shares may be deposited by any person by delivery thereof
to
any Custodian, properly endorsed or accompanied by any appropriate instrument
or
instruments of transfer, in form satisfactory to such Custodian, together with
all such certifications and payments as may be required by the Depositary or
the
Custodian in accordance with the provisions of this Deposit Agreement, and,
if
the Depositary requires, together with a written order directing the Depositary
to execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of American Depositary
Shares representing such deposit.
5
No
Share
shall be accepted for deposit hereunder unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted
by
(i) the governmental authority or body in Finland, if any, which is then
performing the function of the regulation of currency exchange and (ii) the
governmental authority or body in Finland, if any, which is then performing
the
function of the regulation of foreign ownership of Finnish companies. No Shares
shall be accepted for deposit unless accompanied by payment of any Finnish
tax
or duty payable by the Depositary or any Custodian in relation to such deposit
or the issuance of the corresponding Receipts.
If
required by the Depositary, Shares presented for deposit at any time, whether
or
not the Book-Entry Register is open for business, shall also be accompanied
by
an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to a Custodian of any dividend,
or
right to subscribe for additional Shares or any other securities or to receive
other property, which any person for whose benefit the Shares are held or
recorded in the Book-Entry Register 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.
At
the
request and risk and expense of any holder of Shares, and for the account of
such holder, the Depositary may receive Shares to be deposited, together with
the other instruments herein specified, for the purpose of forwarding such
Shares to the Custodian for deposit hereunder.
Upon
each
delivery to the Custodian of Shares to be deposited hereunder, together with
the
other documents above specified, such Custodian shall, as soon as transfer
and
recordation can be accomplished, present such Shares for transfer and
recordation in the Book-Entry Register of the Shares being deposited in the
name
of the Depositary or its nominee or such Custodian or its nominee.
SECTION
2.3. Execution
and Delivery of Receipts.
Upon
receipt and acceptance by the Custodian of any deposit pursuant to Section
2.2,
together with the other documents specified above, 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 notifications
shall be made by letter or, at the request and risk and expense of the person
making the deposit, by cable, telex, SWIFT or facsimile transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to, and in
accordance with, the terms and conditions of this Deposit Agreement, shall
execute and deliver at its Principal Office to or upon the order of the person
or persons named in the notice delivered to the Depositary, a Receipt or
Receipts, registered in the name or names requested by such person or persons
and evidencing in the aggregate the number of American Depositary Shares to
which such person is entitled, but only upon payment to the Depositary of the
fee of the Depositary for the issuance, execution and delivery of such Receipt
or Receipts as provided in Section 5.9, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of
the
Deposited Securities.
6
SECTION
2.4. Transfer
of Receipts; Combination and Split-up of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
register from time to time transfers of Receipts on its transfer books upon
any
surrender of a Receipt by the Holder in person or by 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, the United
States of America or Finland. Thereupon, the Depositary shall execute a new
Receipt or Receipts and 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 Holders or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent
as
the Depositary.
At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, 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 DRS/Profile statement, as the case
may
be, substituted.
SECTION
2.5. Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender at the Principal Office of the Depositary of a Receipt evidencing
American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the cancellation of Receipts as provided in Section 5.9, and subject to
the
terms and conditions of this Deposit Agreement, the Company’s Articles of
Association and the terms of the Deposited Securities, the Holder of such
Receipt shall be entitled to transfer in the Book-Entry Register (including
such
Holder’s registration in the Company’s shareholder register maintained by the
FCSD), to him or upon his order, of the amount of Deposited Securities at the
term represented by such Receipt.
7
Delivery
of Deposited Securities may be made by transfer into the Holder’s or his
nominee’s Book-Entry Account with the Book-Entry Register of Shares registered
in the name of such Holder or as ordered by him or by delivery, by electronic
transfer or otherwise, of any other securities, property or cash to which such
Holder is then entitled in respect of such Receipts to such Holder or as ordered
by him. Such delivery shall be made, as hereinafter provided, without
unreasonable delay and only subject to, and in accordance with, the terms and
conditions of this Deposit Agreement.
A
Receipt
surrendered for such purpose shall be properly endorsed in blank or accompanied
by proper instruments of transfer in blank, and the Holder thereof shall execute
and deliver to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be transferred to or upon the
written order of the person or persons designated in such order. Thereupon
the
Depositary shall direct one (or more) of the Custodians to transfer at the
principal Helsinki office of such Custodian or Custodians, subject to Sections
2.6, 3.1 and 3.2, 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, the amount of Deposited
Securities represented by such Receipt, except that the Depositary may make
delivery to such person or persons at the Principal Office of the Depositary
of
any cash, dividends, distributions or rights with respect to the Deposited
Securities represented by such Receipt, or of any proceeds of sale of any
dividends, distributions or rights with respect to the Deposited Securities,
which may at the time be held by the Depositary.
At
the
request, risk and expense of any Holder surrendering a Receipt, and for the
account of such Holder, the Depositary shall direct a Custodian to transfer
or
forward any cash, rights or other property comprising, and to forward
appropriate evidence of title and other proper documents of title for the
Deposited Securities represented by such Receipt to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex
or
facsimile transmission.
SECTION
2.6. 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 or the Custodian may require payment from the
presenter of the Receipt or depositor of Shares of a sum sufficient or 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 Deposited Securities being withdrawn)
and payment of any applicable fees as herein provided, may require the
production of proof satisfactory to it as to the identity and genuineness of
any
signature and may also require compliance with such regulations, if any, as
the
Depositary may establish consistent with the provisions of this Deposit
Agreement.
8
The
delivery of Receipts against deposits of Shares generally or against deposits
of
particular Shares may be suspended, or the delivery of Receipts against the
deposit of particular Shares may be withheld, or the registration of transfer
of
Receipts in particular instances may be refused, or the transfer or surrender
of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Book-Entry Register are closed, or
if
any such action is deemed, in good faith, 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 authority, body or
commission, or under any provision of this Deposit Agreement or the provisions
of or governing Deposited Securities, or any meeting of shareholders of the
Company or for any other reason, subject to the following sentence.
Notwithstanding
any provision of this Deposit Agreement or the Receipts to the contrary, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may
not
be suspended or refused, except as permitted in General Instruction IA(1) to
Form F-6 (as such may be amended from time to time) under the Securities Act
of
1933 in connection with (i) temporary delays relating to 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 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 or other Deposited Securities
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares or Deposited
Securities.
Finnish
law may set forth restrictions as to the percentage of the total share capital
of the Company that may be held by non-Finnish persons. The Company may restrict
transfers of the Shares in order to comply with this foreign ownership limit
and
will instruct the Depositary and the Custodian in writing with respect to such
restrictions on the acceptance by the Depositary and/or a Custodian of deposits
of Shares hereunder.
SECTION
2.7. Lost
Receipts, etc.
. In
case any Receipt shall be mutilated, destroyed, lost or stolen, unless the
Depositary has notice that such ADR has been acquired by a bona fide purchaser,
subject to Section 5.9 hereof, the Depositary shall execute and deliver a new
Receipt (which, in the discretion of the Depositary may be issued through
DRS/Profile unless specifically requested otherwise) 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 Holder thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond in form and amount
acceptable to the Depositary and (b) satisfied any other reasonable
requirements imposed by the Depositary.
9
SECTION
2.8. 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.
The
Depositary agrees to maintain records of all Receipts surrendered and Deposited
Securities withdrawn under Section 2.5, substitute Receipts delivered under
Section 2.7, and of cancelled or destroyed Receipts under this Section, in
keeping with procedures ordinarily followed by stock transfer agents located
in
The City of New York.
SECTION
2.9. Pre-Release
of Receipts.
Notwithstanding Section 2.3 hereof, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 (“Pre-Release”).
The Depositary may, pursuant to Section 2.5, 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 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 then outstanding;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION
3.1. Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Holder of a Receipt may be required
from time to time to file such proof of citizenship or residence, postal
address, exchange control approval, legal or beneficial ownership or such
information relating to the registration in the Book-Entry Register of the
Shares presented for deposit or other information relating to the registration
in the Book-Entry Register of the Shares presented for deposit or other
information, to execute such certificates and to make such representations
and
warranties as the Depositary may deem necessary or proper, or as the Company
may
require by written notice to the Depositary and each Custodian. The Depositary
may, and shall if requested in writing by the Company, withhold the delivery
of
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or 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 are made.
The Depositary, upon the Company’s written request and at the Company’s expense,
shall provide the Company with copies of any such proofs of, certifications,
representations or warranties or information as to, citizenship or residence,
postal address, exchange control approval, legal or beneficial ownership
information as the Company may request.
10
SECTION
3.2. Liability
of Holder for Taxes.
If any
tax or other governmental charge shall become payable by the Depositary with
respect to any Deposited Securities evidenced by any Receipt, such tax or other
governmental charge shall be payable by the Holder of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt
or
any withdrawal of Deposited Securities evidenced thereby until such payment
is
made, and may withhold any dividends or other distributions, or may sell for
the
account of the Holder thereof any part or all of the Deposited Securities
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, the holder of such Receipt remaining liable for any
deficiency.
SECTION
3.3. Warranties
on Deposit of Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares are validly issued, fully paid and
non-assessable, and that the person making such deposit is duly authorized
so to
do. Every such person shall be deemed to represent that such Shares and the
Receipts evidencing American Depositary Shares representing such Shares would
not be Restricted Securities. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts.
SECTION
3.4. Disclosure
of Interests.
Notwithstanding any other provision of this Deposit Agreement, each Holder
agrees to comply with requests from the Company which are made pursuant to
the
requirements of any relevant stock exchange or other official authority (which
requirements may be in the form of permanent regulations) to provide information
as to the capacity in which such Holder owns Receipts and regarding the identity
of any other person interested in such Receipts and regarding the nature of
such
interest, all as if such Receipts were to the extent practicable the Shares
represented thereby, and the Depositary agrees to use its reasonable efforts
to
forward to any Holder, at the Company’s expense, any request by the Company for
such information.
ARTICLE
IV
THE
DEPOSITED SECURITIES
SECTION
4.1. Appointment
as Agent by Holders.
Each
Holder upon acceptance of a Receipt issued in accordance with the terms hereof,
thereby appoints the Depositary its agent, with power to delegate, to act on
its
behalf and to take any and all steps or action provided for or contemplated
herein with respect to the Deposited Securities, including but not limited
to
those set forth in Article IV, and to take such further steps or action as
the
Depositary in its sole discretion may deem necessary or appropriate to carry
out
the purposes of this Deposit Agreement.
11
SECTION
4.2. Cash
Distributions.
Whenever the Depositary or the Custodian shall receive notice of any cash
dividend or other cash distribution by the Company on any Deposited Securities,
the Company shall pay such amounts to the Depositary, subject to the provisions
of Section 4.6, and the Depositary shall convert such dividend or distribution
into dollars (and, in the case of the Custodian, remit the amount thus received
to the Depositary) and the Depositary shall distribute such amount to the
Holders of Receipts 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 its
agent, the Depositary or the Custodian shall be 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 Holders of Receipts for 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 Holder of a Receipt a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. Holders and holders of Receipts understand that in converting
Foreign Currency, amounts received on conversion are calculated at a rate which
exceeds three or four decimal places (the number of decimal places used by
the
Depositary to report distribution rates). The excess amount may be retained
by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment. It is understood that, notwithstanding that a portion of any
distribution is held by the Depositary pursuant to this paragraph, upon payment
of the cash distribution to a Custodian and/or the Depositary in accordance
with
the terms and conditions of this Deposit Agreement, the Company shall have
fully
discharged, and be free of all, obligations to any Holder relating to such
cash
distribution. Concurrently with making any cash distributions in respect of
any
Deposited Securities held by the Depositary, the Custodian, the Company or
its
agent as appropriate will withhold tax on any cash dividend or cash distribution
as required by applicable law of Finland or regulation and remit to the
appropriate governmental authority or agency in Finland all amounts withheld
and
owing to such authority or agency. The Depositary will forward to the Company
such information from its records as the Company may reasonably request to
enable the Company to file necessary reports with governmental authorities
or
agencies, and either the Depositary, the Custodian or the Company or its agent,
as appropriate, may file any such reports necessary to obtain benefits under
the
applicable tax treaties for the Holders of Receipts.
SECTION
4.3. Distributions
Other Than Cash or Shares.
Whenever the Depositary or the Custodian shall receive any distribution other
than cash or Shares upon any Deposited Securities, the Depositary shall, upon
consultation with the Company, cause the securities or property so received
to
be distributed to the Holders of Receipts entitled thereto, in proportion to
the
number of American Depositary Shares representing such Deposited Securities
held
by them respectively, in any manner that the Depositary deems 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 Holders of Receipts entitled thereto, or if for any other reason
(including, without limiting the generality of the foregoing, a determination
by
the Depositary that such distribution in the United States would not be lawful
or any requirement that the Company or the Depositary withhold an amount on
account of taxes) the Depositary deems such distribution not to be feasible,
the
Depositary may adopt such method as it deems equitable and practicable for
the
purpose of effecting such distribution, including the sale (at public or private
sale, at such place or places and upon such terms as it may deem proper) of
the
securities or property thus received, or any part thereof, and, in such case,
the net proceeds of any such sale shall be distributed by the Depositary to
the
Holders of Receipts entitled thereto as in the case of a distribution received
in cash.
12
SECTION
4.4. Distributions
in Shares.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary shall take all steps necessary to
receive such distribution and may, with the Company’s approval, and shall, if
the Company shall so request, distribute to the Holders of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts for an aggregate number of American Depositary Shares representing
the
amount of Shares received as such dividend or free distribution. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary may 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 4.3. If additional Receipts are not so
distributed (except as pursuant to the preceding sentence), each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby. Notwithstanding
the foregoing, in the event that the Depositary determines that a distribution
in Shares may not legally be made to some or all Holders, whether directly
or as
provided in the preceding sentence, the Depositary may sell such Shares and
remit the proceeds thereof to the Holders entitled thereto as in the case of
a
distribution in cash all in the manner and subject to the conditions described
in Section 4.3.
SECTION
4.5. Rights.
In the
event that the Company shall offer to 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 take all steps necessary to receive
such rights and, after consultation with the Company, shall have discretion
as
to the procedure to be followed in making such rights available to the Holders
of Receipts or in disposing of such rights on behalf of such Holders; provided,
however, that the Depositary will, if requested by the Company, take action
as
follows:
(i) if
at the
time of the offering of any rights the Depositary determines that it is lawful
and feasible to make such rights available to Holders of Receipts by means
of
warrants or otherwise, the Depositary shall distribute warrants or other
instruments therefor in such form as it may determine to the Holders entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities, or employ such other method as it may deem feasible
in order to facilitate the exercise, sale or transfer of rights by such Holders;
or
13
(ii) if
at the
time of the offering of any rights the Depositary determines that it is not
lawful or not feasible to make such rights available to Holders of Receipts
by
means of warrants or otherwise, or if the rights represented by such warrants
or
such other instruments are not exercised and appear to be about to lapse, the
Depositary in its discretion may sell such rights or such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as it may deem proper, and may allocate the proceeds of any such sale
for
the accounts of the Holders of Receipts otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of the applicable
of exchange restrictions with regard to a particular Holder, or the date of
delivery of any Receipt or Receipts, or otherwise and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.2. The Depositary will not offer such
rights to Holders having an address in the United States, unless the Company
furnishes to the Depositary (i) evidence that a registration statement under
the
Securities Act of 1933 covering such offerings is in effect or (ii) an opinion
of counsel for the Company in the United States satisfactory to the Depositary
to the effect that such offering does not require registration under the
Securities Act of 1933. The Company shall not be obligated to provide any such
opinions or evidence or effect registration of such rights under the Securities
Act of 1933.
SECTION
4.6. Conversion
of Foreign Currency.
Whenever the Depositary shall receive any currency other than dollars, by way
of
dividends or other distributions or as the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof such
currency so received can in the judgment of the Depositary be converted on
a
reasonable basis into dollars and the resulting dollars freely transferred
to
the United Sates, the Depositary shall convert or cause to be converted, by
sale
or in any other manner that it may determine, such currency into dollars, and
such dollars shall be distributed to the Holders of Receipts 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 to the Holders may be made upon an averaged or other practicable
basis without regard to any distinctions among such Holders because of the
application of exchange restrictions with regard to a particular Holder, 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
5.9.
If
such
conversion or distribution to the Holders 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 deem
desirable.
14
If
at any
time the Depositary shall determine that, in its judgment, any currency other
than dollars received by the Depositary is not convertible on a reasonable
basis
into dollars freely transferable to the United States, or if any approval or
license of any governmental authority 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
such currency (or an appropriate document evidencing the right to receive such
currency) received by the Depositary to, or, in its discretion, may hold such
currency for the respective accounts of, the Holders of Receipts entitled to
receive the same.
If
any
such conversion of currency, in whole or in part, cannot be effected for
distribution in dollars to some Holders of Receipts entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
dollars to the extent permissible to the Holders of Receipts for whom such
conversion and distribution is practicable and may distribute the balance of
such currency received by the Depositary to, or hold such balance uninvested
and
without liability for the interest thereon for the account of, the Holders
of
Receipts for whom such conversion and distribution is not
practicable.
Holders
understand that in converting foreign currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
SECTION
4.7. Fixing
of Record Date.
Whenever the Depositary shall receive written notice of the fixing of a record
date by the Company for the determination of holders of Deposited Securities
entitled to receive any cash dividend or other cash distribution or any
distribution other than cash or Shares, or any rights to be issued with respect
to the 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 receive written notice of any meeting
of
holders of Shares or other Deposited Securities or whenever the Depositary
shall
find it necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (which, where applicable, shall be as close as practicable to the
date corresponding to the record date fixed by the Company in respect of the
Shares) for the determination of the Holders of Receipts who shall be entitled
to receive such dividend, distribution or rights, or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any
such meeting or to give or withhold such consent, or to receive such notice
or
solicitation or to otherwise take action, or whose Receipts shall evidence
such
changed number of Shares. Subject to the provisions of Sections 4.1 through
4.5
and to the other terms and conditions of this Deposit Agreement, the Holders
of
Receipts on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such divided, distribution
or
rights or the net proceeds of sale thereof or to give such voting instructions,
to receive such notice or solicitation, or otherwise take action in proportion
to the number of American Depositary Shares held by them
respectively.
15
SECTION
4.8. Voting
of Deposited Securities.
Upon
receipt of any notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, as soon as practicable thereafter, fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights as provided in Section 4.7 and shall mail to the
Holders of record a notice which shall contain: (a) such information as is
contained in any such notice of meeting (including, without limitation, a
statement that shareholders are required to give notice of their intention
to
attend the meeting in person or by proxy), and (b) a statement that a Holder
of
record at the close of business on the specified record date will be entitled,
subject to any applicable provisions of Finnish law and of the Articles of
Association of the Company and subject to compliance with the next succeeding
paragraph, to appoint the Depositary as proxy as to the exercise of the voting
rights, if any, pertaining to the Shares or other Deposited
Securities.
It
is a
precondition for exercising any voting rights that a Holder is registered in
the
Company’s shareholder register as a shareholder prior to the record date of the
meeting and gives notice of his intention to attend the meeting, in person
or by
power of attorney, not later than a date specified in the notice convening
the
meeting. Pursuant to these requirements, Holders of Receipts will be entitled
to
instruct the Depositary to request the Custodian to cause the equivalent
underlying Shares to be registered in the Book-Entry Register in the name of
the
Holder and to give notice to the Company of the Holder’s intention to attend the
meeting and to vote the Shares at such meeting in person or by proxy. Upon
the
written request of a Holder of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Shares
or
other Deposited Securities evidenced by such Receipt in accordance with the
instructions set forth in such request. Immediately following any such meeting,
the Custodian will re-register the Shares in the Book-Entry Register in the
name
in which such Shares were previously registered.
SECTION
4.9. Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.4 do not apply, upon any change
in nominal value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger
or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the 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 also represent the new Deposited
Securities so received in exchange or conversion, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case
the
Depositary may, with the Company’s approval, and shall, if the Company so shall
request, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to
be
exchanged for new Receipts specifically describing such new Deposited
Securities. Immediately upon the occurrence of any such change, conversion
or
exchange covered by this Section in respect of the Deposited Securities, the
Depositary shall give notice thereof, at the Company’s expense, in writing to
all Holders of Receipts.
16
SECTION
4.10. Available
Information.
The
Company furnishes the Commission with certain public reports and documents
required by the laws of Finland or otherwise, in accordance with Rule 12g3-2(b)
of the Securities Exchange Act of 1934. Should the Company become subject to
additional informational requirements, it will in accordance therewith file
reports and other information with the Commission.
SECTION
4.11. Reports.
The
Depositary shall make available for inspection by the Holders of Receipts at
its
Principal Office any notices and communications 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 Holders of Receipts
copies of notices and reports when furnished by the Company pursuant to Section
5.6. Any such reports and communications furnished to the Depositary by the
Company and all notices, reports and communications referred to in Sections
4.10
and 5.6 shall be furnished in English, to the extent such materials are required
to be translated into English under the Securities Exchange Act of 1934 or
any
rule or regulation of the Commission.
SECTION
4.12. Lists
of Holders.
Promptly upon request by the Company, the Depositary shall furnish to it a
list,
as of a recent date, of the names, addresses and holdings of American Depositary
Shares by all persons in whose names Receipts are registered on the books of
the
Depositary.
SECTION
4.13. Taxation.
Notwithstanding any other provision of this Deposit Agreement, in the event
that
the Depositary determines that any distribution in property (including Shares
or
rights to subscribe therefor) is subject to any tax which the Depositary is
obligated to withhold, the Depositary may 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, by public or private sale, at such place or places and upon such terms
as
it may deem proper, 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 of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
17
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.1. Maintenance
of Officer 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 in such facilities in the City of New York for
the
registration of Receipts and transfers of Receipts which at all reasonable
times
shall be open for inspection by the Holders of Receipts and the Company,
provided that such inspection shall not to the Depositary’s knowledge be for the
purpose of communicating with the Holders of Receipts 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 or at the request of the Company.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges or automated quotation systems in the United States,
the
Depositary shall act as Registrar or, at the request of or with the approval
of
the Company, appoint a Registrar or one or more co-registrars for registration
of such Receipts in accordance with any requirements of such exchange or
exchanges or system or systems. Such Registrar or co-registrars may be removed
and a substitute appointed by the Depositary upon the request or with the
approval of the Company.
SECTION
5.2. Prevention
or Delay in Performance by the Depositary or the Company; Limitation on
Liabilities.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States or any state thereof, the Finland or
any
other country, or of any other governmental authority or regulatory authority
or
stock exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise
of,
or failure to exercise, any discretion provided for in this Deposit Agreement
or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian
or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any holder of Receipts or authorized
representative thereof, or any other person believed by it in good faith to
be
competent to give such advice or information, (iv) for the inability by a Holder
or holders of Receipts to benefit from any distribution, offering, right or
other benefit which is made available to holders of Deposited Securities but
is
not, under the terms of this Deposit Agreement, made available to Holders of
American Depositary Shares or (v) for any special, consequential, indirect
or
punitive damages for any breach of the terms of this Deposit Agreement or
otherwise.
18
SECTION
5.3. Obligations
of the Depositary, the Custodian and the Company.
Each of
the Company and its agents assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to Holders of Receipts
or
other persons, except that it agrees to perform its obligations specifically
set
forth in this Deposit Agreement without negligence or bad faith.
Each
of
the Depositary and its agents assumes no obligation and shall be subject to
no
liability under this Deposit Agreement or the Receipts to the Holders of
Receipts or other persons (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 be furnished as often as may be required, and no
Custodian shall 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 nor their respective agents shall be liable
for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit,
any
Holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information.
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 failure to act is in good faith.
19
The
Depositary, subject to Section 2.9 hereof, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
SECTION
5.4. Resignation
and Removal of the Depositary; Appointment of Successor
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 predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Company shall
execute and deliver an instrument transferring to such successor all rights
and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor,
and
shall deliver to such successor a list of the Holders of all outstanding
Receipts and such other books and records maintained by such predecessor with
respect to its function as Depositary hereunder. Any such successor depositary
shall promptly mail notice of its appointment to the Holders of
Receipts.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor the Depositary without the execution or filing of any
document or any further act.
SECTION
5.5. The
Custodian.
A
Custodian in acting hereunder shall be subject at all times and in all respects
to the directions of the Depositary and shall be responsible solely to it.
Any
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 shall, promptly after
receiving such notice, appoint a substitute custodian approved by the Company,
which approval shall not be unreasonably withheld, which shall thereafter be
the
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Holders of Receipts to do so, it may appoint
a
substitute custodian approved by the Company, (which approval shall not be
unreasonably withheld), which shall thereafter be the Custodian hereunder,
and
upon demand of the Depositary the predecessor custodian shall deliver the
Deposited Securities held by it to such substitute custodian and such other
books and records maintained by such predecessor with respect to its function
as
the Custodian hereunder. Each such substitute custodian shall deliver to the
Depositary, forthwith upon its appointment, an acceptance of such appointment
satisfactory in form and substance to the Depositary. Immediately upon any
such
change, the Depositary shall give notice thereof in writing to the Company
and
all Holders of Receipts.
20
Upon
the
appointment of any successor depositary hereunder, the 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 the Custodian hereunder;
but
the successor depositary so appointed shall, nevertheless, on the written
request of the 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
5.6. Notices
and Reports.
Upon
the giving of notice by the Company, 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 in respect of Deposited Securities,
the Company agrees to transmit to the Custodian a copy of any notice thereof
in
the form given to holders of such Shares or other Deposited
Securities.
The
Depositary will, at the Company’s expense, arrange for the prompt transmittal by
the Custodian to the Depositary of any such notice and any other reports and
communications which are made generally available by the Company to holders
of
its Shares, and arrange for the mailing, at the Company’s expense, of copies
thereof to all Holders of Receipts.
SECTION
5.7. Issuance
of Additional Shares, etc.
The
Company agrees that in the event of any issuance of additional Shares or of
other securities (including rights and convertible or exchangeable securities)
as a dividend or distribution with respect to the Shares or other Deposited
Securities evidenced by Receipts, the Company will promptly furnish to the
Depositary a written opinion from counsel for the Company in the United States,
which counsel shall be reasonably satisfactory to the Depositary, stating
whether or not the circumstances of such issue are such as to make it necessary
for a registration statement under the Securities Act of 1933 to be in effect
prior to making such dividend or distribution available to the Holders 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 the issuance
of
such securities.
The
Company agrees that it will obtain legal advice from counsel for the Company
in
the United States as to whether future issuances for cash of (1) additional
Shares, (2) rights to subscribe for Shares, (3) securities convertible into
or
exchangeable for Shares, or (4) rights to subscribe for securities convertible
into or exchangeable for Shares (in each event other than as a dividend or
distribution as set forth above), are such as to make it necessary for a
registration statement under the Securities Act of 1933 covering such securities
to be in effect. If being advised by such counsel, the Company determines that
issuance of such securities is required to be registered under the Securities
Act of 1933, the Company will register such issuance to the extent necessary,
alter the terms of the issuance to avoid the registration requirements of the
Securities Act of 1933 or direct the Depositary to take specific measures with
respect to the acceptance for deposit of Shares to prevent such issuance from
being made in violation of the registration requirements of such
act.
21
The
Company agrees with the Depositary that neither the Company nor any company
controlled by, or under common control with, the Company will at any time
deposit any Shares, either upon original issuance or upon a sale of Shares
previously issued and reacquired by the Company or by any such company unless
a
registration statement is in effect as to such Shares under the Securities
Act
of 1933 or unless the offering and sale of such Shares is exempt from
registration under the provisions of such Act.
SECTION
5.8. Indemnification.
The
Company agrees to indemnify the Depositary and its directors, employees, agents
(including each Custodian) and affiliates against, and hold each of them
harmless from, any liability or expense (including, without limitation,
reasonable fees and expenses of counsel) which may arise 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 any of them or (ii) by the Company or
any
of its directors, employees, agents and affiliates.
The
Depositary agrees to indemnify the Company, its directors, employees, agents
and
affiliates against, and hold them harmless from, any liability or expense
(including, without limitation, reasonable fees and expenses of counsel) which
may arise out of acts performed or omitted by the Depositary or any Custodian
or
their respective directors, employees, agents and affiliates due to its or
their
negligence or bad faith.
Notwithstanding
the above, in no event shall the Depositary, the Company or any of their
respective directors, officers, employees, agents and/or Affiliates be liable
for any indirect, special, punitive or consequential damages to the Depositary,
the Company, Holders, holders of Receipts or any other person.
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
22
SECTION
5.9. Charges
of Depositary.
The
Company agrees to pay all charges and expenses of the Depositary as shown in
Exhibit B hereto as payable by the Company and those of the Registrar, in each
case other than (1) the fees of the Depositary for the execution and delivery
of
Receipts pursuant to Section 2.3 and the surrender of Receipts pursuant to
Section 2.5 or the making of a distribution pursuant to Section 4.2, (2) taxes
and other governmental charges, (3) such fees as may from time to time be in
effect for the registration, exchange or transfer of Shares generally on the
share register of the Company in connection with the making of deposits and
withdrawals hereunder and accordingly applicable to transfers of Shares to
the
name of the Depositary on the making of deposits hereunder, (4) such cable,
telex and facsimile transmission expenses as are expressly provided in this
Deposit Agreement to be at the expense of persons depositing Shares or Holders
of Receipts and (5) such expenses as are incurred by the Depositary in the
conversion of currency other than dollars pursuant to Section 4.6. Any other
charges and expenses of the Depositary hereunder will be paid by the Company
after consultation and agreement between the Depositary and the Company as
to
the amount and nature of such charges and expenses. Such charges may at any
time
and from time to time be changed by agreement between the Company and the
Depositary. 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 hereunder are for the sole account of the Depositary.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1. Amendment.
The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than the
fees of the Depositary for the issuance, execution and delivery or cancellation
of Receipts and taxes and other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders of Receipts, shall, however,
not become effective as to outstanding Receipts until the expiration of three
months after the Depositary shall have given a notice of amendment of this
Deposit Agreement to the Holders of outstanding Receipts. Every Holder of a
Receipt at the time any amendment of this Deposit Agreement 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 Holder of any Receipt
to
surrender such Receipt and receive therefor, the Deposited Securities
represented thereby.
SECTION
6.2. 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 Holders of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement if at any time 60 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 have been appointed and accepted its appointment
as
provided in Section 5.4 within such 60 days. 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 Holders 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 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. At any time after the expiration of
one
year from the date of termination, the Depositary may sell at public or private
sale, at such place or places and upon such terms as it may deem proper, 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 Holders of Receipts which have not theretofore been surrendered,
such Holders 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. 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 5.8 and 5.9
hereof.
23
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1. 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 Custodian hereunder and shall be open to inspection
by
any Holder of a Receipt during business hours.
SECTION
7.2. 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
7.3. 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
7.4. Holders
Parties; Binding Effect.
The
Holders 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.
24
SECTION
7.5. 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 the Company at M’kel’xxxxx 00,
X.X. Xxx 000, XXX-00000 Xxxxxxxx, Xxxxxxx, Attention: Group Treasury, telefax:
358 0 7577 200 or at such other place which the Company may designate by giving
notice thereof in writing to the Depositary and the Custodian.
Any
and
all notices to be given to the Depositary 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 Deutsche Bank Trust Company
Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX Attention: ADR
Department, telephone: (000) 000 000-0000, facsimile:
(000) 000 000 0000 or to any other address which the Depositary
may specify in writing to the Company.
Any
and
all notices to be given to any Holder of a Receipt 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 Holder at the address of
such Holder as it appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
designated in such request.
Delivery
of a notice sent to the Company or the Depositary shall be deemed to be
effective upon receipt. Delivery of a notice sent to any Holder by mail or
cable, telex or facsimile transmission shall be deemed to be effected 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-office letter box. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it
from
the other or from any Holder of a Receipt, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter
as
aforesaid.
SECTION
7.6. Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted in accordance with
and
all rights hereunder and thereunder and provisions hereof and thereof shall
be
governed by the laws of the State of New York.
25
IN
WITNESS WHEREOF, AMER SPORTS CORPORATION and DEUTSCHE BANK TRUST COMPANY
AMERICAS have duly executed this Agreement as of the day and year first above
set forth and all Holders of Receipts shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms
hereof.
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AMER
SPORTS CORPORATION
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By:
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS
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By:
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Name:
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Title:
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26
Exhibit
A
to Deposit Agreement
DEUTSCHE
BANK TRUST COMPANY AMERICAS
AMERICAN
DEPOSITARY
RECEIPT
for
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
A-SHARES
of
AMER
SPORTS CORPORATION
(ORGANIZED
UNDER THE LAWS OF THE
REPUBLIC
OF FINLAND)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, a national banking association organized and
existing under the laws of the United States of America, as Depositary (herein
called the Depositary), hereby certifies that ___________________ or registered
assigns is the owner of ______________ American Depositary Shares, representing
deposited A-Shares, without nominal value, (including evidence of rights to
receive such shares, the Shares), of AMER SPORTS CORPORATION, a corporation
organized under the laws of the Republic of Finland (herein called the Company).
At the date of the Deposit Agreement (as hereinafter defined), two American
Depositary Shares represent one Share deposited under the Deposit Agreement
with
a Custodian, which at the date of execution of the Deposit Agreement is Nordea
Bank Finland Plc.
(1)
The
Deposit Agreement.
This
American Depositary Receipt is one of the American Depositary Receipts (herein
called the Receipts), all issued and to be issued upon the terms and conditions
set forth in the Amended and Restated Deposit Agreement, dated as of May ,
2008
(herein called the Deposit Agreement), by and among the Company, the Depositary
and all Holders from time to time of Receipts issued thereunder, each of whom
by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
Holders 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
principal offices of the Depositary and the Custodian and are available for
inspection by Holders during business hours. The statements made on the face
and
the reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are qualified in their entirety by and subject to the detailed
provisions of the Deposit Agreement, to which reference is hereby made.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Deposit Agreement.
A-1
(2) Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment of the fee of the Depositary provided in Paragraph (6) on the face
of
this Receipt, and subject to the terms and conditions of the Deposit Agreement,
the Company’s Articles of Association and the terms of the Deposited Securities,
the Holder hereof is entitled to transfer in the Book-Entry Register (including
such Holders registration in the Company’s shareholder register maintained by
the FCSD) to him or upon his order, of the Deposited Securities at the time
represented by the American Depositary Shares for which this Receipt is issued.
Delivery of such Deposited Securities may be made by transfer into the Holders
or his nominees Book-Entry Account with the Book-Entry Register of Shares
registered in the name of such Holder or as ordered by him or by delivery,
by
electronic transfer or otherwise, of any other securities, property or cash
to
which such Holder is then entitled in respect of such Receipts to such Holder
or
as ordered by him. Such transfer shall be made, as hereinafter provided, without
unreasonable delay and only subject to, and in accordance with, the terms and
conditions of the Deposit Agreement.
(3)
Transfers,
Split-ups and Combinations.
This
Receipt is transferable on the books of the Depositary by the Holder hereof
in
person or by duly authorized attorney, upon surrender of this Receipt properly
endorsed or accompanied by proper instruments of transfer and duly stamped
as
may be required by applicable law; provided, however, that 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 under the
Deposit Agreement. This Receipt may be split into other Receipts or may be
combined with other Receipts into one receipt representing 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 or the Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer, registration or conversion fee with respect thereto and payment
of any applicable fees as provided in Paragraph (6) on the face of this Receipt,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement.
The
Depositary may refuse to execute and to deliver Receipts, register the transfer
of any Receipt or make any distribution of, or related to, Deposited Securities
until it has received such proof of citizenship, residence, exchange control
approval, legal or beneficial ownership or such other information relating
to
the registration in the Book-Entry Register of the Shares presented for deposit
or other information as it may deem necessary or proper. The delivery of
Receipts against deposits of Shares generally may be suspended, or the delivery
of Receipts against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be refused,
or
the registration of transfers or surrenders of outstanding Receipts generally
may be suspended, during any period when the transfer books of the Depositary
or
the Book-Entry Register are closed, if any such action is deemed necessary
or
advisable by the Depositary or the Company at any time or from time to time.
Notwithstanding any provision of the Deposit Agreement or hereof to the
contrary, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended or refused, except as permitted in General
Instruction 1A(1) to Form F- 6 (as such may be amended from time to time) under
the Securities Act of 1933 in connection with (i) temporary delays relating
to
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 or other Deposited Securities
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares or Deposited
Securities.
A-2
Finnish
law may set forth restrictions as to the percentage of the total share capital
of the Company which may be held by non- Finnish persons. The Company may
restrict transfers of the Shares in order to comply with this foreign ownership
limit and will instruct the Depositary and the Custodian in writing with respect
to such restrictions on the acceptance by the Depositary and/or a Custodian
of
deposits of Shares hereunder.
(4)
Liability
of Holder for Taxes.
If any
tax or other governmental charge shall become payable with respect to any
Deposited Securities represented hereby, such tax or other governmental charge
shall be payable by the Holder hereof to the Depositary. The Depositary may
refuse to effect any registration of transfer of this Receipt or any withdrawal
of Deposited Securities represented hereby until such payment is made, and
any
withhold any dividends or other distributions, or may sell for the account
of
the Holder hereof any part or all of the Deposited Securities represented
hereby, and may apply such dividends or other distributions or the proceeds
of
any such sale in payment of such tax or other governmental charge, the Holder
hereof remaining liable for any deficiency.
(5)
Warranties
by Depositor.
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 and non-assessable, and that the person making such deposit
is duly authorized so to do. Each such person shall also be deemed to represent
that such Shares and the Receipts evidencing American Depositary Shares would
not be Restricted Securities. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts.
(6)
Charges
of Depositary.
The
Depositary will charge the party to whom Receipts are delivered against
deposits, $5.00 for each 100 American Depositary Shares (or portion thereof)
represented by the Receipts issued. The Depositary will charge the party
surrendering Receipts for delivery of Deposited Securities, $5.00 for each
100
American Depositary Shares (or portion thereof) represented by the Receipts
surrendered. The Company will pay the other charges of the Depositary and those
of any Registrar under the Deposit Agreement, with the exception of (i) taxes
and other governmental charges, (ii) share transfer, exchange or registration
fees on deposits and withdrawals of Shares, (iii) such cable, telex and
facsimile transmission and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Holders
of Receipts, and (iv) such expenses as are incurred by the Depositary in the
conversion of currency other than dollars into dollars.
A-3
(7)
Title
to Receipt.
It is a
condition of this Receipt, and every successive Holder hereof by accepting
or
holding the same consents and agrees, that title to this Receipt (and to the
American Depositary Shares evidenced hereby), 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; provided, however,
that the Depositary and the Company, notwithstanding any notice to the contrary,
may treat the person in whose name this Receipt is registered on the books
of
the Depositary as the absolute owner hereof for the purpose of determining
the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement, and for all other purposes.
(8)
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 officer
or, if a Registrar for the Receipts shall have been appointed, such signature
may be a facsimile if this Receipt is countersigned by the manual signature
of a
duly authorized officer of such Registrar.
(9)
Disclosure
of Interests.
The
Holder hereof agrees to comply with requests from the Company which are made
pursuant to the requirements of any relevant stock exchange or other official
authority (which requirements may be in the form of permanent regulations)
to
provide information as to the capacity in which the Holder owns this Receipt
and
regarding the identity of any other person interested in such Receipt and the
nature of such interest, all as if such Receipt was to the extent practicable
the Shares represented hereby, and the Depositary agrees to use its reasonable
efforts to forward to the Holder, at the Company’s expense, any request by the
Company for such information.
(10)
Available
Information.
As of
the date of the Deposit Agreement, the Company furnishes the Commission with
certain public reports and documents required by the laws of Finland or
otherwise, in accordance with Rule 12g3-2(b) of the Securities Exchange Act
of
1934. Should the Company become subject to additional informational
requirements, it will in accordance therewith file reports and other information
with the Commission.
A-4
Dated:
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DEUTSCHE
BANK TRUST
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COMPANY
AMERICAS,
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as
Depositary
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By:
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Vice
President
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Countersigned:
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By:
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Authorized
Signatory
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The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-5
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS OF THE DEPOSIT AGREEMENT
(1) Dividends
and Distributions; Rights.
Whenever the Depositary shall receive notice of any cash dividend or other
cash
distribution on the Deposited Securities, the Company shall pay such amounts
to
the Depositary and the Depositary then shall, if at the time of receipt thereof
any amounts received in a currency other than United States dollars can in
the
judgment of the Depositary be converted on a reasonable basis into dollars
freely transferable to the United States, and, subject to the provisions of
the
Deposit Agreement, convert such dividend or distribution into dollars and shall
distribute the amount thus received to the Holders of Receipts entitled thereto
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that the
amount distributed shall be reduced by any amounts required to be withheld
by
the Company, its agent or the Depositary on account of taxes. If in the judgment
of the Depositary amounts received in currency other than dollars may not be
converted on a reasonable basis into dollars freely transferable to the United
States, or may not be so convertible for all of the Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion, if any,
and
distribution in United States dollars to the extent permissible to the Holders
of Receipts entitled thereto and may distribute the balance of such currency
received and not so convertible by the Depositary to, or hold such balance
for
the account of, the Holders of Receipts entitled thereto. Holders understand
that in converting foreign currency, amounts received on conversion are
calculated at a rate which may exceed the number of decimal places used by
the
Depositary to report distribution rates (which in any case will not be less
than
two decimal places). Any excess amount may be retained by the Depositary as
an
additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment. If in the
opinion of the Depositary any distribution other than cash or Shares upon any
Deposited Securities cannot be made proportionately among the Holders 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 if
may
deem equitable for the purpose of effecting such distribution, including the
sale (at public or private sale, at such place or places and upon such terms
as
it may deem proper) of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale will be distributed by the
Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash. It is understood that, notwithstanding that
a
portion of any distribution is held by the Depositary pursuant to Section 4.2
of
the Deposit Agreement, upon payment of the cash distribution to a Custodian
and/or the Depositary in accordance with the terms and conditions of the Deposit
Agreement, the Company shall have fully discharged, and be free of all,
obligations to any Holder relating to such cash distribution. If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary shall take all steps necessary to
receive such distribution and may with the Company’s approval, and shall if the
Company shall so request, distribute to the Holders of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts for an aggregate number of American Depositary Shares representing
such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary
may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, converted into dollars if not in dollars (if such
conversion may in the judgment of the Depositary be achieved on a reasonable
basis), to the Holders of Receipts entitled thereto. If additional Receipts
are
not so distributed (except as provided in the preceding sentence), each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby. 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
nature, the Depositary, after consultation with the Company, shall have
discretion as to whether such rights are to be made available to the Holders
of
Receipts; provided, however, that the Depositary shall, if requested by the
Company, either (a) make such rights available to Holders of Receipts by means
of warrants or otherwise, if lawful and feasible, or (b) if making such rights
available is not lawful or not feasible, or if the rights represented by such
warrants or other instruments are not exercised and appear to be about to lapse,
sell such rights or warrants or other instruments at public or private sale,
at
such place or places and upon such terms as the Depositary may deem proper,
and
allocate the proceeds of any such sale for account of the Holders of Receipts
otherwise entitled thereto upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange restrictions,
or the date of delivery of any Receipt or Receipts, or otherwise and distribute
the net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.2 of the Deposit Agreement.
The Depositary will not offer such rights to Holders having an address in the
United States, unless the Company furnishes to the Depositary (i) evidence
that
a registration statement under the Securities Act of 1933 covering such offering
is in effect or (ii) an opinion of counsel for the Company in the United States
satisfactory to the Depositary to the effect that such offering does not require
registration under the Securities Act of 1933. The Company shall not be
obligated to provide any such opinions or evidence or effect registration of
such rights under the Securities Act of 1933.
A-6
(2)
Record
Dates.
Whenever the Depositary shall receive written notice of the fixing of a record
date by the Company for the determination of holders of Deposited Securities
entitled to receive any cash dividend or other cash distribution or any
distribution other than cash or Shares, or any rights to be issued, with respect
to the 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 receive written notice of any meeting
of
holders of Shares or other Deposited Securities or whenever the Depositary
shall
find it necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (which, where applicable shall be as close as practicable to the
date corresponding to the record date fixed by the Company in respect of the
Shares), for the determination of the Holders of Receipts who shall be entitled
to receive such dividend, distribution or rights, or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at
any
such meeting or to give or withhold such consent, or to receive such notice
or
solicitation or to otherwise take action, or whose Receipts shall evidence
such
changed number of Shares, subject to the provisions of the Deposit Agreement.
A-7
(3)
Voting
of Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, as soon as practicable thereafter, fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights, as provided in Section 4.7 of the Deposit Agreement,
and shall mail to the Holders of record a notice which shall contain: (a) such
information as is contained in such notice of meeting (including, without
limitation, a statement that shareholders are required to give notice of their
intention to attend the meeting in person or by proxy), and (b) a statement
that
a Holder of record at the close of business on a specified record date will
only
be entitled, subject to any applicable provision of Finnish law, the Articles
of
Association of the Company and subject to compliance with the succeeding
sentences of this paragraph, to appoint the Depositary as proxy as to the
exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities. It is a precondition for exercising any voting rights
that
a Holder is registered in the Company’s shareholder register as a shareholder of
the Company prior to the record date of the meeting and gives notice of his
intention to attend the meeting, in person or by power of attorney, not later
than a date, specified in the notice convening the meeting. Pursuant to these
requirements, Holders of Receipts will be entitled to instruct the Depositary
to
request the Custodian to cause the equivalent underlying Shares to be registered
in the Book-Entry Register in the name of the Holder and to give notice to
the
Company of the Holders intention to attend the meeting and to vote the Shares
at
such meeting in person or by proxy. Upon the written request of a Holder of
a
Receipt on such record date, received on or before the date established by
the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Shares or other Deposited
Securities evidenced by such Receipt in accordance with the instructions set
forth in such request. Immediately following any such meeting, the Custodian
will re-register the Shares in the Book-Entry Register in the name in which
such
Shares were previously registered.
(4)
Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.4 of the Deposit Agreement
do
not apply, upon any change in nominal value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary 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 the American Depositary Shares shall thenceforth also represent
the new Deposited Securities so received in exchange or conversion, unless
additional or new 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 stock dividend, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts. Immediately upon the occurrence of any such
change, conversion or exchange covered by this Section in respect of the
Deposited Securities, the Depositary shall give notice thereof in writing to
all
Holders of Receipts.
A-8
(5)
Reports;
Inspection of Transfer Books.
The
Depositary will make available for inspection by Holders of Receipts at its
Principal Office any notices and communications received from the Company which
are received by the Depositary as the owner of the Deposited Securities. The
Depositary will also send to Holders of Receipts copies of notices and reports
when furnished by the Company as provided in the Deposit Agreement. The
Depositary will keep books for the registration of Receipts and their transfer
which at all reasonable times will be open for inspection by the Company and
Holders of Receipts, provided that any inspection by Holders shall not be for
the purpose of communicating with Holders 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.
(6)
Taxation.
Notwithstanding any other provision of the Deposit Agreement, in the event
that
the Depositary determines that any distribution in property (including Shares
or
rights to subscribe therefor) is subject to any tax which the Depositary is
obligated to withhold, the Depositary may 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, by public or private sale, at such place or places, and upon such terms
as it may deem proper, and the Depositary shall distribute the net proceeds
of
any such sale after deduction of such taxes to the Holders of Receipts entitled
thereto.
(7)
Liability
of the Company and Depositary.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States or any state thereof, the Finland or
any
other country, or of any other governmental authority or regulatory authority
or
stock exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise
of,
or failure to exercise, any discretion provided for in this Deposit Agreement
or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian
or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any holder of Receipts or authorized
representative thereof, or any other person believed by it in good faith to
be
competent to give such advice or information, (iv) for the inability by a Holder
or holder of Receipts to benefit from any distribution, offering, right or
other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of American
Depositary Shares or (v) for any special, consequential, indirect or punitive
damages for any breach of the terms of this Deposit Agreement or
otherwise.
A-9
Each
of
the Company and the Depositary assumes no obligation and shall be subject to
no
liability under the Deposit Agreement or the Receipts to Holders of Receipts
or
other persons, except that it agrees to perform its obligations specifically
set
forth in the Deposit Agreement without negligence or bad faith. Neither the
Company nor the Depositary 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 and liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required, and no Custodian shall
be under any obligation whatsoever with respect to such proceeding, the
responsibility of the Custodian being solely to the Depositary. Neither the
Company nor the Depositary nor their respective agents shall be liable for
any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person representing Shares for deposit, any
Holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. 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 will 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 non-action is in good faith. The Depositary,
subject to the provisions of the Deposit Agreement, may own and deal in any
class of securities of the Company and its affiliates and in Receipts. The
Company agrees to indemnify the Depositary and its directors, employees, agents
(including each Custodian) and affiliates against, and hold each of them
harmless from, any liability or expense (including, without limitation,
reasonable fees and expenses of counsel) which may arise out of acts performed
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 any Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
of transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof. Notwithstanding Section 2.3 of the
Deposit Agreement, the Depositary may execute and deliver Receipts prior to
the
receipt of Shares pursuant to Section 2.2 of the Deposit Agreement
(Pre-Release). The Depositary may, pursuant to Section 2.5 of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of Receipts which
have been Pre- Released, whether or not such cancellation is prior to the
termination of such Pre- Release or the Depositary knows that such Receipt
has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts 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-Release will not normally exceed thirty percent
(30%) of the Shares deposited hereunder then outstanding; provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
A-10
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing, including, without limitation, earnings on the
collateral. The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates against, and hold them harmless from any
liability or expense (including, without limitation, reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or any Custodian or their respective directors, employees, agents
and
affiliates due to its or their negligence or bad faith.
(8)
Resignation
and Removal of Depositary; Substitution of the Custodian.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
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. The term
Depositary shall also refer to any successor depositary appointed pursuant
to
this Paragraph (8). The Depositary may at any time appoint a substitute
custodian approved by the Company, such approval not having been unreasonably
withheld, and the term Custodian shall also refer to such substitute.
(9) Amendment
of Deposit Agreement and Receipts.
The
Receipts and the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary. Any Amendment
which
shall impose or increase any fees or charges (other than the fees of the
Depositary for the execution and delivery or the cancellation of Receipts and
taxes or other governmental charges), or which shall otherwise prejudice any
substantial existing right of Holders of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the Holders of outstanding
Receipts. Every Holder of a Receipt at the time any amendment to the Deposit
Agreement 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 Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby.
A-11
(10)
Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Company terminate the
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement at any time 60 days after the Depositary shall have resigned, if
a
successor depositary shall not have been appointed and accepted its appointment
within such 60 days. If any Receipts shall remain outstanding after the date
of
termination, the Depositary thereafter will discontinue the registration of
transfer of Receipts, will suspend the distribution of dividends to the Holders
thereof and will not give any further notices or perform any further acts under
the Deposit Agreement, except the collection of dividends and other
distributions pertaining to Deposited Securities, the sale of rights and
delivery of 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. 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 under the Deposit
Agreement, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of Receipts not theretofore surrendered, such Holders
thereupon becoming general creditors of the Depositary with respect to such
net
proceeds. Thereafter the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash.
(11)
Compliance
with U.S. Securities Laws.
Notwithstanding anything in the Deposit Agreement or Receipt to the contrary,
the Company and the Depositary each agree that it will not exercise any rights
it has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, instruction 1A(1) of the General
instructions to Form F-6 Registration Statement, as amended from time to time,
under the Securities Act of 1933.
The
following abbreviations, when used in the inscription on the face of this
Receipt, shall be construed as though they were written out in full according
to
applicable laws or regulations:
TEN
COM -
as
tenants in common
TEN
ENT -
as
tenants by the entirety
JT
TEN
-
as
joint tenants with right of survivorship and not as tenants in
common
UNIF
GIFT
MIN ACT Custodian _____ under Uniform Gifts Minors Act______
(Cust)
(State)
Additional
abbreviation may also be used though not in the above list
A-12
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Please
print or typewrite name and address of assignee
the
within American Depositary Receipt and all rights and interests represented
thereby, and hereby irrevocably constitutes and appoints
_______________________________________________________________ attorney to
transfer the same on the books of the within named Depositary, with full power
of substitution in the premises.
|
Dated:
|
Signature:
|
|
|
NOTE:
The signature to any endorsement hereon must correspond with the
xxxxx as
written upon the face of the Receipt, in every particular, without
alteration of enlargement of any change whatever.
|
A-13
