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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
DSM N.V.
AND
CITIBANK, N.A.,
as Depositary
AND
THE HOLDERS AND BENEFICIAL OWNERS FROM TIME TO TIME
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
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Dated as of December 3, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.1 "Affiliate"...................................................2
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)"...................2
SECTION 1.3 "ADS Record Date".............................................2
SECTION 1.4 "Applicant"...................................................2
SECTION 1.5 "Articles of Association".....................................2
SECTION 1.6 "Beneficial Owner"............................................3
SECTION 1.7 "Business Day"................................................3
SECTION 1.8 "Commission"..................................................3
SECTION 1.9 "Company".....................................................3
SECTION 1.10 "Custodian"...................................................3
SECTION 1.11 "Deliver" and "Delivery"......................................3
SECTION 1.12 "Deposit Agreement"...........................................3
SECTION 1.13 "Depositary"..................................................3
SECTION 1.14 "Deposited Securities"........................................3
SECTION 1.15 "Dollars" and "$".............................................4
SECTION 1.16 "DTC" 4
SECTION 1.17 "DTC Participant".............................................4
SECTION 1.18 "Exchange Act"................................................4
SECTION 1.19 "Foreign Currency"............................................4
SECTION 1.20 "Full Entitlement ADR(s)," "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)"..................................4
SECTION 1.21 "Guilders," and "NLG".........................................4
SECTION 1.22 "Holder(s)"...................................................4
SECTION 1.23 "NECIGEF".....................................................4
SECTION 1.24 "Netherlands".................................................4
SECTION 1.25 "Original Deposit Agreement"..................................4
SECTION 1.26 "Original Depositary".........................................4
SECTION 1.27 "Partial Entitlement ADR(s)," "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)"............................5
SECTION 1.28 "Pre-Release Transaction".....................................5
SECTION 1.29 "Principal Office"............................................5
SECTION 1.30 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"...5
SECTION 1.31 "Registrar"...................................................5
SECTION 1.32 "Restricted Securities".......................................5
SECTION 1.33 "Securities Act"..............................................6
SECTION 1.34 "Share Registrar".............................................6
SECTION 1.35 "Shares"......................................................6
i
SECTION 1.36 "United States"...............................................6
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.....................6
SECTION 2.1 Appointment of Depositary.....................................6
SECTION 2.2 Form and Transferability of ADRs..............................7
SECTION 2.3 Deposit with Custodian........................................8
SECTION 2.4 Registration of Shares........................................9
SECTION 2.5 Execution and Delivery of ADRs...............................10
SECTION 2.6 Transfer of ADRs; Combination and Split-up of ADRs...........10
SECTION 2.7 Withdrawal of Deposited Securities...........................11
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
ADRs; Suspension of Delivery, Transfer, etc..................12
SECTION 2.9 Lost ADRs, etc...............................................13
SECTION 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records.......................................13
SECTION 2.11 Partial Entitlement ADSs.....................................14
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs......15
SECTION 3.1 Proofs, Certificates and Other Information...................15
SECTION 3.2 Liability for Taxes and Other Charges........................15
SECTION 3.3 Representations and Warranties on Deposit of Shares..........16
SECTION 3.4 Compliance with Information Requests.........................16
SECTION 3.5 Ownership Restrictions.......................................16
ARTICLE IV THE DEPOSITED SECURITIES...........................................17
SECTION 4.1 Cash Distributions...........................................17
SECTION 4.2 Distribution in Shares.......................................17
SECTION 4.3 Elective Distributions in Cash or Shares.....................18
SECTION 4.4 Distribution of Rights.......................................19
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares..............................................20
SECTION 4.6 Distributions with Respect to Deposited Securities in
Bearer Form..................................................21
SECTION 4.7 Redemption...................................................21
SECTION 4.8 Conversion of Foreign Currency...............................22
SECTION 4.9 Fixing of ADS Record Date....................................23
SECTION 4.10 Voting of Deposited Securities...............................23
SECTION 4.11 Changes Affecting Deposited Securities.......................25
SECTION 4.12 Available Information........................................25
SECTION 4.13 Reports......................................................26
SECTION 4.14 List of Holders..............................................26
SECTION 4.15 Taxation.....................................................26
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ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.......................27
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar....27
SECTION 5.2 Exoneration..................................................28
SECTION 5.3 Standard of Care.............................................28
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................29
SECTION 5.5 The Custodian................................................30
SECTION 5.6 Notices and Reports..........................................30
SECTION 5.7 Issuance of Additional Shares, ADSs etc......................32
SECTION 5.8 Indemnification..............................................33
SECTION 5.9 Fees and Charges of Depositary...............................33
SECTION 5.10 Pre-Release..................................................34
SECTION 5.11 Restricted Securities Owners.................................35
ARTICLE VI AMENDMENT AND TERMINATION..........................................35
SECTION 6.1 Amendment/Supplement.........................................35
SECTION 6.2 Termination..................................................36
ARTICLE VII MISCELLANEOUS.....................................................37
SECTION 7.1 Counterparts.................................................37
SECTION 7.2 No Third-Party Beneficiaries.................................37
SECTION 7.3 Severability.................................................37
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect.....37
SECTION 7.5 Notices37
SECTION 7.6 Governing Law and Agent......................................38
SECTION 7.7 Assignment...................................................40
SECTION 7.8 Compliance with U.S. Securities Laws.........................40
SECTION 7.9 References to Laws of The Netherlands........................40
SECTION 7.10 Titles and References........................................40
EXHIBIT A....................................................................A-1
EXHIBIT B....................................................................B-1
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AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of December 3, 2001,
among (i) DSM N.V., a company incorporated under the laws of The Netherlands,
and its successors (the "Company"), (ii) CITIBANK, N.A., a national banking
association organized under the laws of the United States of America acting in
its capacity as depositary, and any successor depositary hereunder (the
"Depositary"), and (iii) all Holders (as hereinafter defined) and Beneficial
Owners (as hereinafter defined) from time to time of American Depositary Shares
evidenced by American Depositary Receipts issued hereunder.
W I T N E S S E T H T H A T:
WHEREAS, the Company and The Bank of New York (the "Original Depositary")
previously entered into a Deposit Agreement, dated as of June 3, 1991 (the
"Original Deposit Agreement"); and
WHEREAS, the Company desires to amend and restate the Original Deposit
Agreement and to establish with the Depositary an ADR facility to provide, inter
alia, for the deposit of Shares and the creation of ADSs (each as hereinafter
defined); and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement (as hereinafter
defined); and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement 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; and
WHEREAS, the Shares are listed on the Euro NEXT Amsterdam N.V., the
Deutsche Borse AG and the SWX Swiss Exchange and the American Depositary Shares
to be issued pursuant to the terms of this Deposit Agreement are expected to
trade over-the-counter; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Original Deposit Agreement is
hereby amended and restated in its entirety and the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean with
respect to any American Depositary Receipt, the securities representing the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder. Each American Depositary
Share shall represent one - fourth (1/4) of one Share, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 with respect to which
additional ADSs are not issued, and thereafter each ADS shall represent the
Shares or Deposited Securities specified in such Sections. American depositary
shares outstanding under the Original Deposit Agreement as of the date hereof
shall, from and after the date hereof, for all purposes be treated as American
Depositary Shares issued and outstanding hereunder and shall, from and after the
date hereof, be subject to the terms and conditions of this Deposit Agreement in
all respects, except that any amendment of the Original Deposit Agreement
effected under the terms of this Deposit Agreement which prejudices any
substantial existing right of holders or beneficial owners shall not become
effective as to holders and beneficial owners of American depositary shares
issued under the Original Deposit Agreement until the expiration of thirty (30)
days after notice of the amendments effected by this Deposit Agreement shall
have been given to such holders of American depositary receipts outstanding
under the Original Deposit Agreement as of the date hereof.
SECTION 1.3 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
SECTION 1.4 "Applicant" shall have the meaning given to such term in
Section 5.10.
SECTION 1.5 "Articles of Association" shall mean the Articles of
Association of the Company as the same may be amended from time to time.
2
SECTION 1.6 "Beneficial Owner" shall mean as to any ADS, any person or
entity owning a beneficial interest in such ADS. A Beneficial Owner of ADSs may
or may not be the Holder of the ADR(s) evidencing such ADSs. A Beneficial Owner
shall be able to exercise any right or receive any benefit hereunder solely
through the person who is the Holder of the ADR(s) evidencing the ADSs owned by
such Beneficial Owner. Persons who own beneficial interests in American
depositary shares issued under the terms of the Original Deposit Agreement and
outstanding as of date hereof shall, from and after the date hereof, be treated
as Beneficial Owners of ADSs under the terms hereof.
SECTION 1.7 "Business Day" shall mean any day on which both the banks in
Amsterdam, The Netherlands and the banks in the City of New York are open for
business.
SECTION 1.8 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency thereto in the United
States.
SECTION 1.9 "Company" shall mean DSM N.V., a company incorporated and
existing under the laws of The Netherlands, and its successors.
SECTION 1.10 "Custodian" shall mean, as of the date hereof, Citibank, N.A.
- Amsterdam, having its principal office at Xxxxxxxxxxxxx 00X, Xxxxxxxxx Z.O.
1101 BE, The Netherlands as the custodian for the purposes of this Deposit
Agreement, and any other entity that may be appointed by the Depositary pursuant
to the terms of Section 5.5 as a successor, substitute or an additional
custodian or custodians hereunder, as the context shall require. The term
"Custodians" shall mean all custodians appointed hereunder, collectively.
SECTION 1.11 "Deliver" and "Delivery" shall mean, when used in respect of
ADSs Deposited Securities and Shares, either (i) the physical delivery of the
certificate(s) representing such securities, or (ii) the electronic delivery of
such securities by means of book-entry transfer, if available.
SECTION 1.12 "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement and all exhibits hereto, as the same may from time to time be
amended and supplemented from time to time in accordance with the terms hereof.
SECTION 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.14 "Deposited Securities" shall, as of any time, mean Shares
deposited under this Deposit Agreement and any and all other securities,
property and cash held at such time by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of Section 4.8.
Notwithstanding anything else contained herein, the securities, property and
cash delivered to the Custodian in respect of American depositary shares
outstanding as of the date hereof under the Original Deposit Agreement and
defined as "Deposited Securities" thereunder, shall, for all purposes from and
after the date hereof, be considered to be, and treated as, Deposited Securities
hereunder in all respects. The collateral delivered in connection with
Pre-Release Transactions described in Section 5.10 hereof shall not constitute
Deposited Securities.
3
SECTION 1.15 "Dollars" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.17 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.19 "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.20 "Full Entitlement ADR(s)," "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
SECTION 1.21 "Guilders," and "NLG" shall refer to the lawful currency of
The Netherlands.
SECTION 1.22 "Holder(s)" shall mean the person(s) in whose name a Receipt
is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such person shall be deemed to have all requisite
authority to act on behalf of the Beneficial Owners of such ADSs. The Holders of
American depositary receipts issued under the terms of the Original Deposit
Agreement and outstanding as of the date hereof shall, from and after the date
hereof, become Holders under the terms of this Deposit Agreement.
SECTION 1.23 "NECIGEF" shall mean The Netherlands Central Institute for
Book-Entry Securities (Nederlands Central Instituut voor Giraal
Effectenverkeer), and any successor thereto.
SECTION 1.24 "Netherlands" shall mean the Kingdom of The Netherlands.
SECTION 1.25 "Original Deposit Agreement" shall mean the Deposit
Agreement, dated as of June 3, 1991, by and among the Company, The Bank of New
York and the Owners and Holders of American Depositary Receipts issued
thereunder.
SECTION 1.26 "Original Depositary" shall have the meaning given to such
term in the preambles to this Deposit Agreement.
4
SECTION 1.27 "Partial Entitlement ADR(s)," "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11.
SECTION 1.28 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10 hereof.
SECTION 1.29 "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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.30 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
Notwithstanding anything else contained herein or therein, the American
depositary receipts issued and outstanding under the terms of the Original
Deposit Agreement shall, from and after the date hereof, be treated as ADRs
hereunder and be subject to the terms hereof in all aspects.
SECTION 1.31 "Registrar" shall mean the Depositary or 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 issuances, transfers and
cancellations of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary and the
Company accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
SECTION 1.32 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, The Netherlands, or under a shareholder agreement or
the Articles of Association of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective resale
registration statement or (b) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs are not, when held by such person(s), Restricted Securities. Securities
eligible for resale under Rule 144(k) under the Securities Act, or any successor
provision, shall not be considered Restricted Securities.
5
SECTION 1.33 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
SECTION 1.34 "Share Registrar" shall mean NV Algemeen Nederlands
Trustkantoor or any other institution organized under the laws of The
Netherlands, which carries out the duties of registrar for the Shares or any
successor as Share Registrar for such Shares appointed by the Company.
SECTION 1.35 "Shares" shall mean the Company's common shares, par value
(euro)3.00 per share, validly issued and outstanding and fully paid and
nonassessable and may, if the Depositary so agrees after consultation with the
Company, include evidence of the right to receive Shares; provided that in no
event shall Shares include evidence of the right to receive Shares with respect
to which the full purchase price has not been paid or Shares as to which
preemptive rights have theretofore not been validly waived or exercised;
provided further, however, that, if there shall occur any change in par value,
split-up, consolidation, exchange, reclassification, conversion or any other
event described in Section 4.11, in respect of the Shares of the Company, the
term "Shares" shall thereafter, to the maximum extent permitted by law,
represent the successor securities resulting from such change in par value,
split-up, consolidation, exchange, conversion, reclassification or event.
SECTION 1.36 "United States" shall have the meaning assigned to it under
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in this Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms and conditions of this Deposit Agreement or by
continuing to hold, from and after the date hereof, any American depositary
share issued and outstanding under the Original Deposit Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of this
Deposit Agreement and applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this Deposit Agreement and
the applicable ADR(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
6
SECTION 2.2 Form and Transferability of ADRs.
(a) Form. ADSs shall be evidenced by definitive ADRs which shall be
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. ADRs may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to the Deposit Agreement,
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in the Deposit Agreement or required by law. ADRs shall
be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADRs. No ADR and no ADS evidenced thereby shall be
entitled to any benefits under the Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company, unless such ADR shall
have been so dated, signed, countersigned and registered (other than an American
depositary receipt issued and outstanding as of the date hereof under the terms
of the Original Deposit Agreement which from and after the date hereof becomes
subject to the terms of this Deposit Agreement in all respects). ADRs bearing
the facsimile signature of a duly authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP
number that is different from any CUSIP number that was, is or may be assigned
to any depositary receipts previously or subsequently issued pursuant to any
other arrangement between the Depositary (or any other depositary) and the
Company and which are not ADRs issued hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in the
text thereof, such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary and the Company to perform their respective obligations hereunder,
(ii) may be required to comply with any applicable laws or regulations, or with
the rules and regulations of any securities exchange or market upon which ADSs
may be traded, listed or quoted or to conform with any usage with respect
thereto, (iii) may be necessary to indicate any special limitations or
restrictions to which any particular ADRs or ADSs are subject by reason of the
date of issuance of the Deposited Securities or otherwise, or (iv) may be
required by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed for all purposes, to have notice of, and to be
bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each ADS evidenced thereby), when properly endorsed or
accompanied by proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a certificated security under the laws of
the State of New York; provided, however, that the Depositary and the Company,
notwithstanding any notice to the contrary, may deem and treat the Holder of an
ADR (that is, the person in whose name an ADR is registered on the books of the
7
Depositary) as the absolute owner thereof for all purposes, and neither the
Depositary nor the Company shall have any obligation or be subject to any
liability under this Deposit Agreement or any ADR to any holder of an ADR or any
Beneficial Owner unless such holder is the registered Holder of such ADR
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co.") and will provide that
it represents the aggregate amount of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
amount of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of DTC or
its nominee as hereinafter provided. As such, the nominee for DTC will be the
only "Holder" of the ADR evidencing all ADSs held through DTC. Citibank, N.A.
(or such other entity as is appointed by DTC or its nominee) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
SECTION 2.3 Deposit with Custodian. Subject to the terms and conditions of
this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every
deposit of Shares shall be accompanied by the following: (A) (i) in the case of
Shares represented by certificates issued in registered form, appropriate
instruments of transfer or endorsement, in a form satisfactory to the Custodian,
(ii) in the case of Shares represented by certificates in bearer form of the
requisite coupons and talons pertaining thereto, and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person(s) stated in
8
such order the ADR(s) for the number of ADSs representing the Shares so
deposited, (D) evidence reasonably satisfactory to the Depositary (which may be
an opinion of counsel) that all necessary approvals have been granted by, or
there has been compliance with the rules and regulations of, any applicable
governmental agency in The Netherlands, and (E) if the Depositary so requires,
(i) an agreement, assignment or other instrument reasonably satisfactory to the
Depositary or the Custodian which provides for the prompt transfer by any person
in whose name the Shares are or have been recorded to the Custodian of any
distribution, or right to subscribe for additional Shares or to receive other
property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be reasonably satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in the name of
the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to exercise voting rights in respect of the Shares for
any and all purposes until the Shares so deposited are registered in the name of
the Depositary, the Custodian or any nominee. Without limiting any other
provision of this Deposit Agreement, the Depositary shall instruct the Custodian
not to, and the Depositary shall not knowingly, accept for deposit (a) any
Restricted Securities nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No
Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of The Netherlands
and any necessary approval has been granted by any applicable governmental body
in The Netherlands. The Depositary may issue ADSs against evidence of rights to
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. The Depositary shall use its reasonable efforts to comply
with reasonable written instructions from the Company that the Depositary shall
not accept for deposit hereunder any Shares identified in such instructions at
such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with the securities
laws of the United States.
SECTION 2.4 Registration of Shares. The Depositary shall instruct the
Custodian upon each Delivery of certificates representing registered Shares
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), together with the other documents above
specified, to present such certificate(s), together with the appropriate
instrument(s) of transfer or endorsement, duly stamped, to the Share Registrar
for transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or a nominee in each case on
behalf of the Holders and Beneficial Owners, at such place or places as the
Depositary or the Custodian shall determine.
9
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,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or other Deposited Securities the deposit of
which would violate any provisions of the Articles of Association of the
Company.
SECTION 2.5 Execution and Delivery of ADRs. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a
nominee of either on the shareholders' register maintained by or on behalf of
the Company by the Share Registrar if registered Shares have been deposited or
if deposit is made by book-entry transfer, confirmation of such transfer in the
books of NECIGEF, (iii) that all required documents have been received, and (iv)
the person(s) to whom or upon whose order ADSs are deliverable in respect
thereof and the number of ADSs to be so delivered. Such notification may be made
by letter, cable, telex, SWIFT message or, at the risk and expense of the person
making the deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from such Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement and applicable law, shall issue the
ADSs representing the Shares so deposited to or upon the order of the person(s)
named in the notice delivered to the Depositary and shall execute and deliver at
its Principal Office Receipt(s), registered in the name(s) requested by such
person(s) and evidencing the aggregate number of ADSs to which such person(s)
are entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing ADSs and executing and delivering
such ADR(s) (as set forth in Section 5.9 and Exhibit B hereto) and all taxes and
governmental charges and fees payable in connection with such deposit and the
transfer of the Shares and the issuance of the ADR(s). The Depositary shall only
issue ADSs in whole numbers and deliver ADRs evidencing whole numbers of ADSs.
Nothing herein shall prohibit any Pre-Release Transaction upon the terms set
forth in this Deposit Agreement.
SECTION 2.6 Transfer of ADRs; Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall register the transfer of ADRs (and of
the ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the same
aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of
the following conditions has been satisfied: (i) the ADRs have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered ADRs have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
ADRs have been duly stamped (if required by the laws of the State of New York or
of the U.S.), and (iv) all applicable fees and charges of, and expenses incurred
by, the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
10
(b) Combination & Split Up. The Registrar shall register the split-up or
combination of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such ADRs and
execute new ADRs for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the ADRs canceled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver such new
ADRs to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) the ADRs have been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each
case, to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
(c) Co-Transfer Agents. The Depositary may, upon notice to the Company,
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of ADRs 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 such ADRs and will be entitled to protection
and indemnity to the same extent as the Depositary in fulfilling such role. Such
co-transfer agents may be removed and substitutes appointed by the Depositary.
Each co-transfer agent appointed under this Section 2.6 (other than the
Depositary) shall give notice in writing to the Depositary and the Company
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
SECTION 2.7 Withdrawal of Deposited Securities. The Holder of ADSs shall
be entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADSs upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered ADSs to the Depositary at its Principal Office (and
if applicable, the ADRs evidencing such ADSs) for the purpose of withdrawal of
the Deposited Securities represented thereby, (ii) if so required by the
Depositary, the ADRs Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
and Exhibit B hereof) have been paid, subject, however, in each case, to the
terms and conditions of the ADRs evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Articles of Association and of any applicable laws
and the rules of NECIGEF, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
11
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered, and (iii) shall direct the
Custodian to Deliver (without unreasonable delay) at the Custodian's designated
office the Deposited Securities represented by the ADSs so canceled together
with any certificate or other document of title for the Deposited Securities, or
evidence of the electronic transfer thereof (if available), as the case may be,
to or upon the written order of the person(s) designated in the order delivered
to the Depositary for such purpose, subject however, in each case, to the terms
and conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so
canceled, of the Articles of Association of the Company, of applicable laws and
of the rules of the NECIGEF, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs 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 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADRs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration of issuance, transfer, split-up, combination or surrender
of any ADR, the delivery of any distribution thereon or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (i) payment
from the depositor of Shares or presenter of ADSs or of an ADR of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit B hereof, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
12
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and Delivery of ADRs or ADSs
or to the withdrawal of Deposited Securities and (B) such reasonable regulations
as the Depositary and the Company may establish consistent with the provisions
of the applicable ADR, this Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of ADRs in particular instances may be refused,
or the registration of transfers of ADRs generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of this Deposit Agreement or the applicable
ADR(s) or under any provision of, or governing, the Deposited Securities, or
because of a meeting of shareholders of the Company or for any other reason
(provided that the Depositary shall, to the extent reasonably practicable,
provide the Company with prior notice of any such closure which is not in the
ordinary course of business), subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or any ADR(s) to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADRs or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
SECTION 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed,
lost, or stolen, the Depositary shall execute and deliver a new ADR of like
tenor at the expense of the Holder (a) in the case of a mutilated ADR, in
exchange of and substitution for such mutilated ADR upon cancellation thereof,
or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in
substitution for such destroyed, lost, or stolen ADR, after the Holder thereof
(i) has submitted to the Depositary a written request for such exchange and
substitution before the Depositary has notice that the ADR has been acquired by
a bona fide purchaser, (ii) has provided such security or indemnity (including
an indemnity bond) as may be required by the Depositary to save it and any of
its agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction, loss or theft of such ADR, the
authenticity thereof and the Holder's ownership thereof.
SECTION 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records. All ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable against the Depositary for any
13
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
SECTION 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement Shares
which are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on ADRs) to give
effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
14
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL
OWNERS OF ADSs
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
this Deposit Agreement or the ADR(s) evidencing the ADS(s) and the provisions
of, or governing, the Deposited Securities, to execute such certifications and
to make such representations and warranties, and to provide such other
information and documentation (or, in the case of Shares in registered form
presented for deposit, such information relating to the registration on the
books of the Company or of the Share Registrar) as the Depositary or the
Custodian may reasonably deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under this Deposit Agreement and the applicable ADR(s) hereunder.
The Depositary and the Registrar, as applicable, may withhold the execution,
Delivery or registration of transfer of any ADR or the distribution or sale of
any dividend or distribution of rights or of the proceeds thereof or, to the
extent not limited by the terms of Section 7.8 hereof, the Delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives from Holders and Beneficial
Owners, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from any
Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs
for cancellation, transfer or withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any ADR or any
Deposited Securities or ADSs, such tax or other governmental charge shall be
payable by the Holders to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of the Holder and/or
Beneficial Owner any or all of the Deposited Securities represented by such
Holder's and/or Beneficial Owner's ADSs and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the Depositary
may refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
15
the Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and are not, and the ADSs issuable upon such deposit will not
be, Restricted Securities, and (v) the Shares presented for deposit have not
been stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the Euro NEXT Amsterdam N.V., the
Deutsche Borse AG and the SWX Swiss Exchange, and any other stock exchange on
which the Shares or ADSs are, or will be, registered, traded or listed or the
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Holder or Beneficial Owner owns
ADSs (and Shares as the case may be) and regarding the identity of any other
person(s) interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
SECTION 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Articles of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
the ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Association of the Company. The
Depositary shall use its reasonable efforts to comply with reasonable
instructions of the Company as provided in this Section 3.5.
16
The Company has advised the Depositary that under the Dutch Act on the
Disclosure of Holdings in Listing Companies, shareholders including Holders and
Beneficial Owners must promptly notify the Company and The Netherlands
Securities Investment Board, if their holdings reach, exceed or fall below 5%,
10%, 25%, 50% or 66-2/3% of the capital interest and/or voting rights in the
Company. Holders and Beneficial Owners agree to comply with such requirements.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Deposited Securities or any other entitlements held in respect of Deposited
Securities under the terms hereof, the Depositary will, if at the time of
receipt thereof any amounts received in a Foreign Currency can in the judgment
of the Depositary (pursuant to Section 4.8 hereof) be converted on a practicable
basis into Dollars transferable to the U.S., (i) promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (on the
terms described in Section 4.8), (ii) if applicable establish the ADS Record
Date upon the terms set forth in Section 4.9, and (iii) distribute promptly the
amount thus received (net of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date (if any) in proportion to the number
of ADSs held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. No
distribution to Holders pursuant to this Section 4.1 shall be unreasonably
delayed by any action of the Depositary. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority. Evidence of
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9 hereof, distribute to the Holders as of the ADS Record Date in proportion to
the number of ADSs held as of the ADS Record Date, additional ADSs, which
represent in the aggregate the number of Shares received as such dividend, or
free distribution, subject to the other terms of this Deposit Agreement
17
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights
and interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms described in Section 4.1. In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company, in the fulfillment of
its obligation under Section 5.7 hereof, has furnished an opinion of U.S.
counsel determining that Shares must be registered under the Securities Act or
other laws in order to be distributed to Holders (and no such registration
statement has been declared effective), 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, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall promptly
distribute the net proceeds of any such sale (after deduction of such (a) taxes
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1. No
distribution to Holders pursuant to this Section 4.2 shall be unreasonably
delayed by any action of the Depositary. To the extent such securities or
property or the net proceeds thereof are not distributed to Holders as provided
in this Section 4.2, the same shall, to the maximum extent permitted by law,
constitute Deposited Securities and each ADS shall thereafter also represent its
proportionate interest in such securities, property or net proceeds. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give notice thereof to the
Depositary at least sixty (60) days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon timely receipt of notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
use its reasonable efforts to assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall make such
elective distribution available to Holders only if (i) the Company shall have
timely requested that the elective distribution be made available to the
Holders, (ii) the Depositary shall have determined that such distribution is
reasonably practicable, and (iii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7. If the above
conditions are not satisfied, the Depositary shall, to the extent permitted by
law, distribute to the Holders, on the basis of the same determination as is
made in The Netherlands in respect of the Shares for which no election is made,
either (X) cash upon the terms described in Section 4.1 or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.2. If
the above conditions are satisfied, the Depositary shall establish an ADS Record
Date (on the terms described in Section 4.9) and establish procedures to enable
18
Holders to elect the receipt of the proposed distribution in cash or in
additional ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent reasonably necessary. If a Holder elects to receive the
proposed distribution (X) in cash, the distribution shall be made upon the terms
described in Section 4.1, or (Y) in ADSs, the distribution shall be made upon
the terms described in Section 4.2. Nothing herein shall obligate the Depositary
to make available to Holders a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that Holders generally, or
any Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
SECTION 4.4 Distribution of Rights.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least sixty (60) days prior to the proposed distribution stating whether or not
it wishes such rights to be made available to Holders of ADSs. Upon timely
receipt of a notice indicating that the Company wishes such rights to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall use reasonable efforts to assist the Depositary
in its determination, whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such rights
available to Holders only if (i) the Company shall have timely requested that
such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in Section 4.9) and establish procedures (x) to distribute such
rights (by means of warrants or otherwise) in proportion to the number of ADSs
held by each such Holder to whom a distribution is made hereunder, (y) to enable
the Holders to exercise the rights (upon payment of the subscription price and
of the applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of
such rights. The Company shall use reasonable efforts to assist the Depositary
to the extent necessary in establishing such procedures. Nothing herein shall
obligate the Depositary to make available to the Holders a method to exercise
such rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practicable. The Company
shall use reasonable efforts to assist the Depositary to the extent necessary to
determine such legality and practicability. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms set forth in Section 4.1.
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(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or reasonably practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the U.S. and counsel to the Company in any other applicable country
in which rights would be distributed, in each case reasonably satisfactory to
the Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges 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, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
20
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall use its reasonable best efforts to assist the
Depositary, to determine whether such distribution to Holders is lawful and
reasonably practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received as promptly as practicable to the Holders of record as of
the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines with the assistance of the
Company that all or a portion of such distribution is not lawful or reasonably
practicable, the Depositary shall sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem practicable and shall (i) cause the proceeds of such sale, if any, to be
converted, as soon as practicable, into Dollars, and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of the Holders in any way it deems reasonably
practicable under the circumstances.
SECTION 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of ADRs with
respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
SECTION 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary as promptly as is reasonably practicable and
consistent with applicable law prior to the intended date of redemption which
notice shall set forth the particulars of the proposed redemption. Upon timely
21
receipt of (i) such notice and (ii) satisfactory documentation given by the
Company to the Depositary within the terms of Section 5.7, and if the Depositary
shall have determined that such proposed redemption is practicable, the
Depositary shall distribute to each Holder a notice setting forth the intended
exercise by the Company of the redemption rights and any other particulars set
forth in the Company's notice to the Depositary. The Depositary shall instruct
the Custodian to present to the Company the Deposited Securities in respect of
which redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred
by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of
such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2
hereof. If less than all outstanding Deposited Securities are redeemed, the ADSs
to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 hereof and
the applicable fees and charges of, and expenses incurred by, the Depositary,
and taxes) multiplied by the number of Deposited Securities represented by each
ADS redeemed.
SECTION 4.8 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall promptly
convert or cause to be converted, by sale or in any other manner that it may
determine, such Foreign Currency into Dollars, and shall promptly distribute
such Dollars (net of any applicable fees, any reasonable and customary expenses
incurred in such conversion and any expenses incurred on behalf of the Holders
in complying with currency exchange control or other governmental requirements)
in accordance with the terms of the applicable sections of this Deposit
Agreement. If the Depositary shall have distributed warrants or other
instruments that entitle the holders thereof to such Dollars, the Depositary
shall distribute such Dollars to the holders of such warrants and/or instruments
upon surrender thereof for cancellation, in either case without liability for
interest thereon. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, and it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its reasonable
judgment the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
practicable or lawful, or if any approval or license of any governmental
22
authority or agency thereof that is required for such conversion, transfer and
distribution is denied or, in the opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
discretion, (i) make such conversion and distribution in Dollars to the Holders
for whom such conversion, transfer and distribution is lawful and practicable,
(ii) distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
SECTION 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of or solicitation of consents or proxies 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 proxy, or any other matter, the Depositary shall
fix a record date (the "ADS Record Date") for the determination of the Holders
of ADRs who shall be entitled to receive such distribution, 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 to exercise the rights of Holders with respect to such changed number
of Shares represented by each ADS. The Depositary shall make reasonable efforts
to establish the ADS Record Date to the extent practicable as closely as
possible to the applicable record date for the Deposited Securities (if any) and
shall make reasonable efforts to consult with the Company in the event such ADS
Record Date differs from the applicable record date established for the
Deposited Securities. Subject to applicable law and the provisions of Section
4.1 through 4.8 and to the other terms and conditions of this Deposit Agreement,
only the Holders of ADRs at the close of business in New York on such ADS Record
Date shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
SECTION 4.10 Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9.
The Depositary shall, if requested by the Company in writing at least 25
Business Days before the date of the relevant meeting or response date (the
Depositary having no obligation to take any further action if the request shall
not have been timely received by the Depositary), at the Company's expense and
provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b)
a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the provisions of this Deposit
Agreement, the Articles of Association of the Company and the provisions of or
governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs, and (c) a brief statement as to
23
the manner in which such voting instructions may be given. Voting instructions
may be given only in respect of a number of ADSs representing an integral number
of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the
ADS Record Date of voting instructions in the manner specified by the Depositary
and satisfaction of the conditions set forth below, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of this Deposit Agreement, the Articles of Association of the
Company, the law of The Netherlands and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
(in person or by proxy) represented by such Holder's ADSs in accordance with
such voting instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in
favor of the items set forth in such voting instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted. Notwithstanding anything else
contained herein, the Depositary shall, if so requested in writing by the
Company, represent all Deposited Securities (whether or not voting instructions
have been received in respect of such Deposited Securities from Holders as of
the ADS Record Date) for the sole purpose of establishing quorum at a meeting of
shareholders.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
24
SECTION 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal value, split-up, cancellation, 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 replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the ADRs shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's prior
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and the Depositary's reasonable satisfaction with the
documentation provided pursuant to Section 5.7 hereof, that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional ADRs as in the case of a stock dividend on the Shares, or call for
the surrender of outstanding ADRs to be exchanged for new ADRs, in either case,
as well as in the event of newly deposited Shares, with necessary modifications
to the form of ADR contained in Exhibit A hereto, specifically describing such
new Deposited Securities or corporate change. The Company and the Depositary
agree to amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of ADRs. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to the Depositary's
reasonable satisfaction with the legal documentation requirements described
above that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1. The Depositary shall not be responsible for (i)
any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or to any Holder in particular, (ii)
any foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities. If requested in writing
by the Company, upon the occurrence of any such change, conversion or exchange
covered by this Section 4.11 in respect of Deposited Securities, the Depositary
shall give notice thereof in writing to the Holders thereof.
SECTION 4.12 Available Information. The Company furnishes the Commission
with certain public reports and documents required by foreign law or otherwise
under Rule 12g3-2(b) under the Exchange Act. These reports and documents can be
inspected and copied at public reference facilities maintained by the Commission
located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
25
SECTION 4.13 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them 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
provide to Holders copies of such reports and communications when furnished by
the Company pursuant to Section 5.6.
SECTION 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders.
SECTION 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and their respective
agents may file such reports as are necessary to reduce or eliminate applicable
taxes on dividends and on other distributions in respect of Deposited Securities
under applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. The Depositary will use
commercially reasonable efforts to establish procedures enabling Holders to
benefit from a reduction of Dutch withholding tax pursuant to the applicable
United States tax treaty with The Netherlands. As a condition to receiving such
benefits, Holders and Beneficial Owners of ADSs may be required from time to
time, and in a timely manner, to file such proof of taxpayer status, residence
and beneficial ownership (as applicable), to execute such certificates and to
make such representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Holders and Beneficial Owners shall indemnify the Depositary, the Company,
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
26
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. None of the
Company, the Depositary or the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Foreign Personal Holding
Company," "Controlled Foreign Corporation," or as a "Passive Foreign Investment
Company" (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of ADRs, and the surrender
of ADRs for the purpose of Delivery and withdrawal of Deposited Securities in
accordance with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs in keeping with procedures customarily followed by stock
transfer agents located in the City of New York and as required by the laws or
regulations governing the Depositary. Such books shall at all reasonable times
be open for inspection by the Company and by the Holders of such ADRs, provided
that such inspection shall not be, to the Registrar's knowledge, for the purpose
of communicating with Holders of such ADRs in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the ADRs.
After consultation with the Company (to the extent reasonably
practicable), the Registrar may close the transfer books with respect to the
ADRs, at any time or from time to time, when deemed necessary or advisable by it
in good faith in connection with the performance of its duties hereunder, or at
the reasonable written request of the Company subject, in all cases, to Section
7.8 hereof.
If any ADRs or the ADSs 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, after consultation with the Company, appoint a
Registrar or one or more co-registrars for registration of ADRs and transfers,
combinations and split-ups, and to countersign such ADRs in accordance with any
requirements of such exchanges or systems. Such Registrar or co-registrars may
be removed and a substitute or substitutes appointed by the Depositary, upon
notice to the Company. Each Registrar or co-registrar appointed hereunder (other
than the Depositary) shall give notice in writing to the Depositary and the
Company accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
27
SECTION 5.2 Exoneration. Neither the Depositary nor the Company, nor any
of their respective directors, employees, agents or Affiliates shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company 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 U.S., The
Netherlands 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 Articles of Association of the Company 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 Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner 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 Beneficial Owner 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 ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement.
The Depositary, any Custodian and the Company, and their respective
controlling persons, directors, employees, agents and Affiliates may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the
Company and the Depositary agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable ADRs without
negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, 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 ADRs,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability shall 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 each Custodian being solely to the
Depositary).
28
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement. The Depositary shall not incur any liability for any failure
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
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 resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company 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, which removal shall be effective on the earlier of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company 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 be
required by the Company to 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 (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADRs and such other information relating to ADRs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders.
29
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Depositary has initially appointed
Citibank, N.A. - Amsterdam, as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Securities and no other Custodian has previously been
appointed hereunder, the Depositary shall, after consultation with the Company
(if reasonably practicable), promptly appoint a substitute custodian that is
organized under the laws of The Netherlands. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may, after consultation with the
Company (if reasonably practicable), appoint an additional custodian with
respect to any Deposited Securities, or discharge the Custodian with respect to
any Deposited Securities and appoint a substitute custodian, which shall
thereafter be Custodian hereunder with respect to the Deposited Securities.
Immediately upon any such change, the Depositary shall give notice thereof in
writing to all Holders of ADRs, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
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 shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary in English, of the Articles of
Association of the Company that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary English-language versions
of the other notices, reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities.
The Depositary shall arrange, at the request of the Company and at the Company's
expense, for the distribution of copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
30
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the Company's Articles
of Association along with the provisions of or governing the Shares and any
other Deposited Securities issued by the Company in connection with such Shares,
and promptly upon any amendment thereto or change therein, the Company shall
deliver to the Depositary and the Custodian copy of such amendment thereto or
change therein. The Depositary may rely upon such copy for all purposes of this
Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
Delivered to the Depositary for inspection by the Holders of the ADRs evidencing
the ADSs representing such Shares governed by such provisions at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
31
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, the Investment Company Act of 1940, as amended, the Exchange
Act or the securities laws of the states of the United States, provided that no
such opinion shall be required in the event of an issuance of Shares as a
dividend, share split or similar free distribution of Shares. In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or not
application of such transaction to Holders and Beneficial Owners (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act, and (b) an opinion of
counsel in The Netherlands stating that (i) making the transaction available to
Holders and Beneficial Owners does not violate the laws or regulations of The
Netherlands and (ii) all requisite regulatory consents and approvals have been
obtained in The Netherlands. If the filing of a registration statement is
required, the Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably satisfactory to it
that such registration statement has been declared effective. If, being advised
by counsel, the Company determines that a transaction is required to be
registered under the Securities Act, the Company will either (i) register such
transaction to the extent necessary, (ii) alter the terms of the transaction to
avoid the registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that the Company will not, and that
it will use its reasonable efforts to ensure that none of its Affiliates will at
any time (i) deposit any Shares or other Deposited Securities, either upon
original issuance or upon a sale of Shares or other Deposited Securities
previously issued and reacquired by the Company or by any such Affiliate, or
(ii) issue additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for such
securities, unless such transaction and the securities issuable in such
transaction are exempt from registration under the Securities Act and, if
applicable, the Exchange Act or have been registered under the Securities Act
and, if applicable, the Exchange Act (and such registration statement has been
declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
32
SECTION 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary under the terms hereof due to the negligence or bad faith of
the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case (i) by the Depositary, the Custodian or
any of their respective directors, officers, employees, agents and Affiliates,
except to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
33
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses, fees and
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Pre-Release. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that, the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 and (ii) deliver Shares
prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to
Section 2.7, including ADSs which were issued under (i) above but for which
Shares may not have been received (each such transaction a "Pre-Release
Transaction"). The Depositary may receive ADSs in lieu of Shares under (i) above
and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs, and (z) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all
times fully collateralized with cash, U.S. government securities 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
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate, with notice to the
Company. The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
34
SECTION 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit Restricted
Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the ADRs outstanding at any time, the
provisions of this Deposit Agreement and the form of ADR attached hereto and to
be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADRs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADRs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s) to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and the ADR as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADR and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the ADRs at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and the ADRs in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
35
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by distributing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination. If
ninety (90) days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the
Company shall have delivered to the Depositary a written notice of the removal
of the Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by providing notice of such
termination to the Holders of all ADRs then outstanding at least thirty (30)
days prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of an ADR will, upon surrender
of such ADR at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of ADRs referred to in Section 2.7
and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such ADR. If any ADRs shall remain outstanding after the date of
termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of ADRs, and the Depositary 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,
subject to the conditions and restrictions set forth in Section 2.7, 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 ADRs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six (6) months from
the date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest, for the
pro rata benefit of the Holders whose ADRs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement with respect to the ADRs the Deposited
Securities and the ADSs, except (a) to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of an ADR, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments and (b) for its obligations to the Company under Sections 5.8 and
7.6 hereof). 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, 5.9 and 7.6 hereof.
36
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 together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships or (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the ADRs 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 and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any ADR by acceptance thereof of any beneficial interest therein.
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, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to the Company at
Het Overloon 1, Heerlen, X.X. Xxx 0000, 0000 XX Xxxxxxx, Xxx Xxxxxxxxxxx,
Attention: Mr. J.A.M.J. Bluyssen, Investor Relations, telephone number:
000-00-00-000-000, fax number: 000-00-00-000-0000 or to any other address which
the Company may specify in writing to the Depositary.
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, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR Department, or to any other address
which the Depositary may specify in writing to the Company.
37
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter personally delivered or sent by mail
or air courier, addressed to such Holder at the address of such Holder as it
appears on the books of the Depositary or, if such Holder shall have filed with
the Depositary a request that notices intended for such Holder be mailed to some
other address, at the address specified in such request, or (b) if a Holder
shall have designated such means of notification as an acceptable means of
notification under the terms of this Deposit Agreement, by means of electronic
messaging addressed for delivery to the e-mail address designated by the Holder
for such purpose. Notice to Holders shall be deemed to be notice to Beneficial
Owners for all purposes of this Deposit Agreement. Failure to notify a Holder or
any defect in the notification to a Holder shall not affect the sufficiency of
notification to other Holders or to the Beneficial Owners of ADSs held by such
other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. 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, notwithstanding
that such cable, telex or facsimile transmission shall not subsequently be
confirmed by letter as aforesaid.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
SECTION 7.6 Governing Law and Agent. This Deposit Agreement and the ADRs
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 without reference to the principles of choice of law thereof.
Notwithstanding anything contained in this Deposit Agreement, any ADR or any
present or future provisions of the laws of the State of New York, the rights of
holders of Shares and of any other Deposited Securities and the obligations and
duties of the Company in respect of the holders of Shares and other Deposited
Securities, as such, shall be governed by the laws of The Netherlands (or, if
applicable, such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 0000 Xxxxxxxx, Xxx Xxxx Xxx Xxxx, 00000, as its authorized agent
38
to receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in connection with this Deposit Agreement, the ADRs
or Deposited Securities in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any
reason the Agent shall cease to be available to act as such, the Company agrees
to designate a new agent in New York on the terms and for the purposes of this
Section 7.6 reasonably satisfactory to the Depositary. The Company further
hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to be
ineffective or such Agent shall fail to accept or acknowledge such service),
with a copy mailed to the Company by registered or certified air mail, postage
prepaid, to its address provided in Section 7.5 hereof. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
39
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
SECTION 7.9 References to Laws of The Netherlands. Any summary of the laws
of The Netherlands and regulations and of the terms of the Company's Articles of
Association set forth in this Deposit Agreement have been provided by the
Company solely for the convenience of Holders, Beneficial Owners and the
Depositary. While such summaries are believed by the Company to be accurate as
of the date of this Deposit Agreement, (i) they are summaries and as such may
not include all aspects of the materials summarized applicable to a Holder or
Beneficial Owner, and (ii) these laws and regulations and the Company's Articles
of Association may change after the date of this Deposit Agreement. Neither the
Depositary nor the Company has any obligation under the terms of this Deposit
Agreement to update any such summaries
SECTION 7.10 Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
40
IN WITNESS WHEREOF, DSM N.V. and CITIBANK, N.A. have duly executed this
Amended and Restated Deposit Agreement as of the day and year first above set
forth and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of ADSs evidenced by ADRs issued in accordance with the terms
hereof or upon acquisition of any beneficial interest therein.
DSM N.V.
By: /s/ X.X. xxx Xxxxx
--------------------------------
Name: X.X. xxx Xxxxx
Title: Member of the Managing
Board of Directors
By: /s/ F. Sijbesma
--------------------------------
Name: F. Sijbesma
Title: Member of the Managing
Board of Directors
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
41
EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number DSMKY_______ CUSIP NO.: 23332H 20 2
American Depositary
Shares (Each American
Depositary Share
representing one-fourth (1/4) of one
Ordinary Share,
par value (euro)3.00 per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
DSM N.V.
(Incorporated under the laws of the Kingdom of The Netherlands)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ________ is the owner of _________ American
Depositary Shares (hereinafter "ADS"), representing deposited Ordinary Shares,
par value (euro)3.00 per share, including evidence of rights to receive such
Ordinary Shares (the "Shares") of DSM N.V., a corporation incorporated under the
laws of the Kingdom of The Netherlands (the "Company"). As of the date of the
Deposit Agreement (hereinafter referred to), each ADS represents one-fourth
(1/4) of one (1) Share deposited under the Deposit Agreement with the Custodian
which at the date of execution of the Deposit Agreement is Citibank, N.A. -
Amsterdam (the "Custodian"). The ratio of American Depositary Shares to Shares
is subject to subsequent amendment as provided in Articles IV and VI of the
Deposit Agreement. The Depositary's Principal Office is located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-1
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Amended and Restated Deposit
Agreement, dated as of December 3, 2001 (as further amended and supplemented
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs
evidenced by ADRs issued thereunder. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of ADRs 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 Office of the Depositary and the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement or by continuing to hold, from and after the date hereof,
any American depositary share issued and outstanding under the Original Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement, and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in the Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of the Deposit Agreement and the applicable ADRs, the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association of the Company, to which reference is
hereby made. All capitalized terms used herein which are not otherwise defined
herein shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities. The Depositary has made arrangements for the
acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC
must rely on the procedures of DTC and the DTC Participants to exercise and be
entitled to any rights attributable to such ADSs. The ADR evidencing the ADSs
held through DTC will be registered in the name of a nominee of DTC. So long as
the ADSs are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the ADR registered in the name of DTC (or its nominee)
will be shown on, and transfers of such ownership will be effected only through,
records maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or
their nominees).
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
A-2
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, this ADR has been
properly endorsed in blank or is accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this ADR, of the Deposit Agreement,
of the Company's Articles of Association, of any applicable laws and the rules
of NECIGEF, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) shall direct the Custodian to Deliver (without unreasonable
delay) at the Custodian's designated office the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of title
for the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this ADR, of the Articles of Association of the Company, of any applicable laws
and the rules of the NECIGEF, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADRs evidencing ADSs
representing less than one Share. In the case of surrender of an ADR evidencing
a number of ADS representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be Delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) return to the person surrendering such ADSs the number of
ADSs representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Shares represented by the ADS(s) so surrendered and remit
the proceeds thereof (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
A-3
expense of any Holder so surrendering ADSs represented by this ADR, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of, the Deposited Securities represented by
such ADSs 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.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the U.S.),
and (iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
subject, however, in each case, to the terms and conditions of this ADR, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender of any ADR, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
A-4
an ADS or an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated by the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and Delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of ADRs in particular instances may be refused, or the registration of
transfer of ADRs generally may be suspended, during any period when the transfer
books of the Company, the Depositary, a Registrar or the Share Registrar are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this ADR, or under any provisions of, or
governing, the Deposited Securities, meeting of shareholders of the Company or
for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADS(s) to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the ADRs or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A. (1) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
agrees to comply with requests (an "Information Request") from the Company
pursuant to the rules and requirements of Euro NEXT Amsterdam N.V., the Deutsch
Borse AG and the SWX Swiss Exchange and any stock exchange on which the Shares
or the ADSs are, or will be, registered, traded or listed, or the Articles of
Association of the Company, which are made to provide information, inter alia,
as to the capacity in which such Holder or Beneficial Owner owns ADSs (and
Shares, as the case may be) and regarding the identity of any other person(s)
interested in such ADSs and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward,
upon the request of the Company and at the Company's expense, any such request
from the Company to the Holders and to forward to the Company any such responses
to the such requests received by the Depositary.
A-5
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion, but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. The Depositary shall use its
reasonable efforts to comply with reasonable instructions of the Company as
provided in Section 3.5 of the Deposit Agreement and this Article (6).
The Company has advised the Depositary that under the Dutch Act on the
Disclosure of Holdings in listing Companies, shareholders including Holders and
Beneficial Owners must promptly notify the Company and The Netherlands
Securities Investment Board if their holdings reach, exceed or fall below 5%,
10%, 25%, 50% or 66-2/3% of the capital interest and/or voting rights in the
Company. Holders and Beneficial Owners agree to comply with such requirements.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable with respect to any ADR or any
Deposited Securities or ADSs, such tax or other governmental charge shall be
payable by the Holders to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of the Holder and/or
Beneficial Owner any or all of the Deposited Securities represented by such
Holder's and/or Beneficial Owner's ADS(s) and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the Depositary
may refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Article (24) hereof) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
A-6
(8) Representations and Warranties of Depositors. Notwithstanding any
other provision of the Deposit Agreement, every person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities, (v) the Shares presented for deposit have not been stripped of any
rights or entitlements. Such representations and warranties shall survive the
deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time (i) to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions
of, or governing, the Deposited Securities and (ii) to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may reasonably deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under the Deposit Agreement. The Depositary and the
Registrar, as applicable, may withhold the execution, Delivery or registration
of transfer of any ADR or the distribution or sale of any dividend or other
distribution of rights or of the proceeds thereof or, to the extent not limited
by the terms of Article (24) hereof and the terms of the Deposit Agreement, the
delivery of any Deposited Securities until such proof or other information is
filed or such certifications are executed, or such representations are made, or
such other information and documentation are provided, in each case to the
Depositary's, Registrar's, and Company's satisfaction.
A-7
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares
(excluding issuances pursuant to paragraph (iv) below), a fee not in
excess of U.S. $ 5.00 per 100 ADSs (or portion thereof) so issued
under the terms of the Deposit Agreement;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per 100
ADSs (or portion thereof) held for the distribution of cash proceeds
(i.e., upon the sale of unexercised rights and other entitlements)
under the terms of the Deposit Agreement; and
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) issued pursuant to stock dividends or
other free stock distributions or upon the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
A-8
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary. The
right of the Depositary to receive payment of fees, charges and expenses shall
survive termination of the Deposit Agreement.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that the ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the contrary, the
Depositary and the Company may deem and treat the Holder of this ADR (that is,
the person in whose name this ADR is registered on the books of the Depositary)
as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the
Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner
unless such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
A-9
(13) Available Information; Reports; Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Exchange
Act. These reports and documents can be inspected and copied at public reference
facilities maintained by the Commission located at Judiciary Plaza, 000 Xxxxx
Xxxxxx (Xxxx 0000), X.X., Xxxxxxxxxx, X.X. 00000. The Depositary shall make
available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the ADRs.
After consultation with the Company, to the extent reasonably practicable,
the Registrar may close the transfer books with respect to the ADRs, at any time
or from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties under the Deposit Agreement, or at
the reasonable written request of the Company subject, in all cases, to Article
(24) hereof.
Dated:
Countersigned CITIBANK, N.A., as Depositary
By: ______________________________ By: ______________________________
Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-10
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the U.S., (i) promptly convert or cause to be converted such
cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms set forth in the Deposit Agreement and in Article (16), and (iii) promptly
distribute the amount thus received (net of (a) the applicable fees and charges
hereof, and expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit from the Custodian, the Depositary shall, subject to and in
accordance with the Deposit Agreement, establish the ADS Record Date and either
(i) the Depositary shall distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in aggregate the number of Shares received as such
dividend, or free distribution, subject to the terms of the Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights
A-11
and interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes). In
lieu of delivering fractional ADSs, the Depositary shall sell the number of
Shares or ADSs, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), 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, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall promptly distribute the net proceeds of any such sale (after deduction of
such (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit Agreement.
No distribution to Holders pursuant to this Article (14) shall be unreasonably
delayed by any action of the Depositary. To the extent such securities, or
property or the net proceeds thereof are not distributed to Holders as provided
in this Article (14) the same shall, to the maximum extent permitted by law,
constitute Deposited Securities and each ADS shall thereafter also represent its
proportionate interest in such securities, property or net proceeds. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS record date according to Article (16) and establish procedures to enable
the Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
distribution shall be made as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares. If such
elective distribution is not legal or reasonably practicable or if the
Depositary did not receive satisfactory documentation set forth in the Deposit
Agreement, the Depositary shall, to the extent permitted by law, distribute to
Holders, on the basis of the same determination as is made in The Netherlands in
respect of the Shares for which no election is made, either (x) cash or (y)
additional ADSs representing such additional Shares, in each case, upon the
terms described in the Deposit Agreement. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holder hereof a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that the Holder hereof will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
A-12
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution of rights is reasonably practicable. If
such conditions are not satisfied, the Depositary shall sell the rights as
described below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in the
Deposit Agreement) and establish procedures (x) to distribute such rights to
purchase additional ADSs (by means of warrants or otherwise), (y) in proportion
to the number of ADSs held by each such Holder to whom a distribution is to be
made hereunder, and to enable the Holders to exercise the rights (upon payment
of the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise such rights to subscribe for Shares (rather than ADSs). If
(i) the Company does not timely request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not reasonably practicable
to make the rights available to Holders, or (iii) any rights made available are
not exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
or private sale) as it may deem practicable. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or reasonably practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
A-13
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the U.S. and counsel to the Company in
any other applicable country in which rights would be distributed, in each case
reasonably satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges 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, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein or in the Deposit Agreement shall obligate the Company to
file any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Subject to the terms of Article IV of the Deposit Agreement, distributions
in respect of Deposited Securities that are held by the Depositary in bearer
form shall be made to the Depositary for the account of the respective Holders
of ADSs with respect to which any such distribution is made upon due
presentation by the Depositary or the Custodian to the Company of any relevant
coupons, talons, or certificates. The Company shall promptly notify the
Depositary of such distributions. The Depositary or the Custodian shall promptly
present such coupons, talons or certificates, as the case may be, in connection
with any such distribution.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine, upon consultation with the Company,
whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is reasonably practicable. Upon satisfaction of such conditions, the Depositary
shall distribute the property so received as promptly as practicable to the
Holders of record as of the ADS Record Date, in proportion to the number of ADSs
held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
A-14
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted, as soon as practicable into
Dollars and (ii) distribute the proceeds of such conversion received by the
Depositary (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms hereof. If the Depositary is unable to sell such property for the account
of the Holders, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and satisfactory documentation under the terms of the Deposit
Agreement, and upon determining that such proposed redemption is practicable,
the Depositary shall distribute to each Holder a notice setting forth the
Company's intention to exercise the redemption rights and any other particulars
set forth in the Company's notice to the Depositary. Upon receipt of
confirmation that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer,
distribute the proceeds (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof and upon the terms of the Deposit
Agreement. If less than all outstanding Deposited Securities are redeemed, the
ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of the Deposit Agreement
and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of or
solicitation of consents or proxies 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 proxy,
or any other matter, the Depositary shall, fix a record date (the "ADS Record
Date") for the determination of the Holders of ADRs who shall be entitled to
A-15
receive such distribution, 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 to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. Subject to applicable law, the terms and conditions of this ADR and
the Deposit Agreement, only the Holders of ADRs at the close of business in New
York on such ADS Record Date shall be entitled to receive such distributions, to
give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing at least 25 Business days before the date of
the relevant meeting or response date (the Depositary having no obligation to
take any further action if the request shall not have timely been received by
the Depositary at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders as of the ADS Record Date (a) such notice of
meeting or solicitation of consent or proxy, (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs, and (c) a brief statement as to the manner in which such voting
instructions may be given. Voting instructions may be given only in respect of a
number of ADSs representing an integral number of Deposited Securities. Upon the
timely receipt from a Holder of ADSs as of the ADS Record Date in the manner
specified by the Depositary and satisfaction of the conditions set forth below,
the Depositary shall endeavor, insofar as practicable and permitted under
applicable law and the provisions of the Articles of Association of the Company
and the Deposit Agreement, the law of The Netherlands and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by the ADSs in respect of which
voting instructions have been received.
Neither the Depositary nor the Custodian shall, under any circumstances,
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in
favor of the items set forth in such voting instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted. Notwithstanding anything else
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contained herein, the Depositary shall, if so requested in writing by the
Company, represent all Deposited Securities (whether or not voting instructions
have been received in respect of such Deposited Securities from Holders as of
the ADS Record Date) for the sole purpose of establishing quorum at a meeting of
shareholders. Notwithstanding anything else contained in the Deposit Agreement
or this ADR, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
value, split-up, cancellation, 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 replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's prior approval, and shall, if the Company
shall so request, subject to the terms of the Deposit Agreement and the
Depositary's reasonable satisfaction with the documentation provided under the
Deposit Agreement, execute and deliver additional ADRs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR contained in
this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall, if the
Company requests, subject to the Depositary's reasonable satisfaction with the
documentation provided under the Deposit Agreement, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Holders in general or
any Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities. If requested in writing by the Company, upon the occurrence of any
such change, conversion or exchange covered by this Article (18) in respect of
Deposited Securities, the Depositary shall give notice thereof in writing to the
Holders thereof.
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(19) Exoneration. Neither the Depositary nor the Company, nor any of their
respective directors, employees, agents or Affiliates shall be obligated to do
or perform any act which is inconsistent with the provisions of the Deposit
Agreement or incur any liability (i) if the Depositary or the Company shall be
prevented or forbidden from, or subjected to any civil or criminal penalty or
restraint on account of, or delayed in, doing or performing any act or thing
required by the terms of the Deposit Agreement and this ADR, by reason of any
provision of any present or future law or regulation of the U.S., The
Netherlands 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 Articles of Association of the Company 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 the Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner 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 Beneficial Owner 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 the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, any Custodian and the Company, and their respective controlling
persons, directors, employees, agents and Affiliates may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, 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 ADRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability shall be furnished as often as may be required (and no Custodian shall
A-18
be under any obligation whatsoever with respect to such proceedings, the
responsibility of each Custodian being solely to the Depositary). The Depositary
and its agents shall not be liable for any failure to carry out any instructions
to vote any of the Deposited Securities, or for the manner in which any vote is
cast or the effect of any vote, provided that any such action or omission is in
good faith and in accordance with the terms of the Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for the content
of any information submitted to it by the Company for distribution to the
Holders or for any inaccuracy of any translation thereof, for any investment
risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment by the Company 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, which notice of removal shall be effective on
the earlier of (i) the 90th day after delivery thereof to the Depositary, or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. 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 be required by the Company to 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 (except as required by applicable law), shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in the Deposit Agreement), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADRs and such other information relating to ADRs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
A-19
(22) Amendment/Supplement. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges of the Depositary in connection with foreign exchange control
regulations, and taxes and other governmental charges, delivery and other such
expenses), or which shall otherwise materially prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding ADRs until the expiration of thirty (30) days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding ADRs. The parties to the Deposit Agreement agree that any amendments
or supplements which (i) are reasonably necessary (as agreed by the Company and
the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s) to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADR and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holder's ADR(s) at the Principal Office of the Depositary, upon the payment
A-20
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of the Deposited Securities represented by such ADR. If any ADRs shall
remain outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to the Deposited
Securities, shall sell rights as provided in the Deposit Agreement, and shall
continue to deliver the Deposited Securities, subject to the conditions and
restrictions set forth in the Deposit Agreement, 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 ADRs surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a ADR, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six (6) months from the date of termination of
the Deposit Agreement, the Depositary may sell the Deposited Securities then
held under the terms of 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 terms of the Deposit Agreement, in an unsegregated account, without
liability for interest, for the pro rata benefit of the Holders whose ADRs have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect to
the ADRs, the Deposited Securities and the ADSs, except (a) to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments) and (b) for its obligations to the Company under the
Deposit Agreement. Upon the termination of the Deposit Agreement, the Company
shall be discharged from all obligations under the Deposit Agreement except as
set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A. (1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
A-21
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that, the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities 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 Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), 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 also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
A-22
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _______________________________ whose taxpayer identification
number is _______________________________ and whose address including postal zip
code is _______________________________, the within ADR and all rights
thereunder, hereby irrevocably constituting and appointing
_______________________________ attorney-in-fact to transfer said ADR on the
books of the Depositary with full power of substitution in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatsoever.
If the endorsement be executed by an attorney, executor, administrator, trustee
or guardian, the person executing the endorsement must give his/her full title
in such capacity and proper evidence of authority to act in such capacity, if
not on file with the Depositary, must be forwarded with this ADR.
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
LEGENDS
The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences
American Depositary Shares representing partial entitlement Shares of DSM N.V.
and as such do not entitle the holders thereof to the same per-share entitlement
as other Shares (which are "full entitlement" Shares) issued and outstanding at
such time. The American Depositary Shares represented by this ADR shall entitle
holders to distributions and entitlements identical to other American Depositary
Shares when the Shares represented by such American Depositary Shares become
"full entitlement" Shares".
A-23
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-----------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-----------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or person receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
-----------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and fraction thereof) surrendered. withdrawal.
cash against surrender of
ADSs.
-----------------------------------------------------------------------------------------------------------
(3) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., sale of rights and fraction thereof) held.
other entitlements).
-----------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) issued.
other free stock
distributions, or (ii)
exercise of rights.
-----------------------------------------------------------------------------------------------------------
II. Charges Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
B-1
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities
B-2
