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UPM-KYMMENE CORPORATION
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
OUTSTANDING UNDER THE TERMS OF THE
AMENDED AND RESTATED DEPOSIT AGREEMENT, DATED AS OF JUNE 29, 1999
------------------------------------
Amendment No. 1
to
Amended and Restated Deposit Agreement
------------------------------------
Dated as of__________, 2007
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ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01 Definitions..................................................2
SECTION 1.02 Effective Date...............................................2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................2
SECTION 2.01 Deposit Agreement............................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners......2
SECTION 2.03 Deregistration of Securities.................................3
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................4
SECTION 3.01 ADR Amendment................................................4
SECTION 3.02 Deregistration of Securities.................................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................6
SECTION 4.01 Representations and Warranties...............................6
ARTICLE V
MISCELLANEOUS..................................................................7
SECTION 5.01 New ADRs.....................................................7
SECTION 5.02 Notice of Amendment to Holders of ADSs.......................7
SECTION 5.03 Indemnification..............................................7
SECTION 5.04 Ratification.................................................8
SECTION 5.05 Governing Law................................................8
SECTION 5.06 Counterparts.................................................8
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT dated as
of _____________, (the "Amendment"), by and among UPM-KYMMENE CORPORATION, a
company incorporated and existing under the laws of Finland (the "Company"),
Citibank, N.A., a national banking association organized under the laws of the
United States of America (the "Depositary"), and all Holders and Beneficial
Owners from time to time of American Depositary Shares evidenced by American
Depositary Receipts outstanding under the Amended and Restated Deposit
Agreement, dated as of June 29, 1999 (the "Deposit Agreement").
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into the Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares (as defined in the Deposit Agreement) so deposited and for the execution
and delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, the Company has filed a Form 15F with the U.S. Securities
and Exchange Commission ("SEC") in order to seek to terminate the registration
of its securities under the United States Securities and Exchange Act of 1934,
as amended ("Exchange Act"), and its obligation to file with the SEC, or submit
to the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act; and
WHEREAS, the Company desires to (x) amend the Deposit Agreement, the
ADRs currently outstanding and the form of ADR annexed to the Deposit Agreement
to reflect such change, and (y) to give notice thereof to all Holders (as
defined in the Deposit Agreement) of ADSs; and
1
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the
Company and the Depositary deem it necessary and desirable to amend the Deposit
Agreement, the ADRs currently outstanding and the form of ADR annexed to the
Deposit Agreement as Exhibit A for the purposes set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the ADRs currently outstanding and
the form of ADR annexed as Exhibit A to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this
Amendment, all capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean
the date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit
Agreement to the terms "Deposit Agreement" shall, as of the Effective Date and
thereafter, refer to the Deposit Agreement, dated as of June 29, 1999 as amended
by this Amendment and as further amended from time to time.
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendments to the Deposit
Agreement effected hereby shall be binding on all Holders and Beneficial Owners
of ADSs issued and outstanding as of the Effective Date and on all Holders and
Beneficial Owners of ADSs issued after the Effective Date.
2
SECTION 2.03 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the Deposit Agreement is hereby amended as of the Effective
Date by deleting Section 4.11 in its entirety and inserting the following in its
stead:
"Section 4.11 Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with and submitted to the SEC certain reports that can be retrieved from
the SEC's internet website at xxx.xxx.xxx, and can be inspected and copied
at the public reference facilities maintained by the SEC at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F ("Form
15F") with the SEC, which has suspended the Company's duty under the
Exchange Act to file or submit the reports required under Sections 13(a)
or 15(d) of the Exchange Act. Upon the effectiveness of Form 15F, the
Company's duty to file or submit reports under Sections 13(a) or 15(d) of
the Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations of the
Exchange Act provided by Rule 12g3-2(b). In order to satisfy the
conditions of Rule 12g3-2(b), the Company currently intends to publish the
information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act
on its internet website or through an electronic information delivery
system generally available to the public in the Company's primary trading
market, and to translate the information so published into English in
accordance with the instructions to Rule 12g3-2(e). The Company has
specified in Form 15F the internet website or the electronic information
delivery system on which it intends to publish such information. The
3
information so published by the Company cannot be retrieved from the SEC's
internet website, and cannot be inspected or copied at the public
reference facilities maintained by the SEC. If the Form 15F is not
declared effective, the Company will again be subject to the periodic
reporting requirements of the Exchange Act and will be required to file
with and submit to the SEC certain reports that can be retrieved from the
SEC's internet website at xxx.xxx.xxx and can be inspected and copied at
the public reference facilities maintained by the SEC."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of
the form of ADR attached as Exhibit A to the Deposit Agreement and in each of
the ADRs issued and outstanding under the terms of the Deposit Agreement is
hereby amended as of the Effective Date by deleting such sentence in its
entirety and inserting the following in its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and conditions set
forth in the Amended and Restated Deposit Agreement, dated as of June 29, 1999,
as amended by Amendment No. 1 to Amended and Restated Deposit Agreement, dated
as of [date] (as so amended and 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 American Depositary Shares
evidenced by Receipts issued thereunder, each of whom by accepting a Receipt
becomes bound by all the terms and provisions thereof."
SECTION 3.02 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
4
the Exchange Act, the form of Receipt attached as Exhibit A to the Deposit
Agreement and each of the Receipts issued and outstanding under the terms of the
Deposit Agreement is hereby amended as of the Effective Date by deleting
paragraph (13) in its entirety and inserting the following in its stead:
"Section (13) Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with and submitted to the SEC certain reports that can be retrieved from
the SEC's internet website at xxx.xxx.xxx, and can be inspected and copied
at the public reference facilities maintained by the SEC at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F ("Form
15F") with the SEC, which has suspended the Company's duty under the
Exchange Act to file or submit the reports required under Sections 13(a)
or 15(d) of the Exchange Act. Upon the effectiveness of Form 15F, the
Company's duty to file or submit reports under Sections 13(a) or 15(d) of
the Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations of the
Exchange Act provided by Rule 12g3-2(b). In order to satisfy the
conditions of Rule 12g3-2(b), the Company currently intends to publish the
information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act
on its internet website or through an electronic information delivery
system generally available to the public in the Company's primary trading
market, and to translate the information so published into English in
accordance with the instructions to Rule 12g3-2(e). The Company has
specified in Form 15F the internet website or the electronic information
delivery system on which it intends to publish such information. The
information so published by the Company cannot be retrieved from the SEC's
internet website, and cannot be inspected or copied at the public
5
reference facilities maintained by the SEC. If the Form 15F is not
declared effective, the Company will again be subject to the periodic
reporting requirements of the Exchange Act and will be required to file
with and submit to the SEC certain reports that can be retrieved from the
SEC's internet website at xxx.xxx.xxx, and can be inspected and copied at
the public reference facilities maintained by the SEC."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other documents furnished hereunder or thereunder in
Finland, neither of such agreements need to be filed or recorded with any court
or other authority in Finland, nor does any stamp or similar tax need be paid in
Finland on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
6
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued hereunder
after the Effective Date, once such new ADRs are available, whether upon the
deposit of Shares or other Deposited Securities or upon the transfer,
combination or split up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send notices informing the Holders of ADSs (i) of the
terms of this Amendment, (ii) of the Effective Date of this Amendment, and (iii)
that the Holder of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 5.01 hereof and (iv) that
copies of this Amendment may be retrieved from the Commission's website at
xxx.xxx.xxx and may be obtained from the Depositary and the Company upon
request.
SECTION 5.03 Indemnification. The Company agrees to indemnify and
hold harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
7
SECTION 5.04 Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.06 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
8
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
UPM-KYMMENE CORPORATION
By: ________________________________
Name:
Title:
CITIBANK, N.A., as Depositary
By: ________________________________
Name:
Title:
9
EXHIBIT A
[FORM OF RECEIPT)
Number CUSIP NUMBER: _____________
American Depositary Shares (each
American Depositary Share
Representing One Fully Paid
Ordinary Share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
UPM-KYMMENE CORPORATION
(Incorporated under the laws of Finland)
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, including evidence of rights to receive
such ordinary shares (the "Shares") of UPM-Kymmene Corporation, a corporation
incorporated under the laws of Finland (the "Company"). As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents one Share
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Xxxxxx Bank Limited (the "Custodian"). The
ratio of American Depositary Shares to Shares is subject to amendment as
provided in Article IV of the Deposit Agreement. The address of the Corporate
Agency Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx,
XX 00000. The Depositary's Corporate Agency Office is different from its
Principal Executive Office. Its Principal Executive Office is at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000.
A-1
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth in the Amended and Restated Deposit Agreement, dated as
of June 29, 1999, as amended by Amendment No. 1 to Amended and Restated Deposit
Agreement, dated as of [date] (as so amended and 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 American Depositary Shares evidenced by Receipts issued thereunder, each of
whom by accepting a Receipt becomes bound by all the terms and provisions
thereof. The Deposit Agreement sets forth the rights and obligations of Holders
and Beneficial Owners of Receipts and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt 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 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.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
The Holder of this Receipt (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 ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) 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 Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt 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 and Exhibit B
hereof) have been paid, subject however, in each case, to the terms and
conditions of this Receipt, of the Deposit Agreement, of the Company's Articles
of Association and of any applicable laws and the rules of FCSD, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt 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 cancelled together with evidence of the
electronic transfer thereof (if available), 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 Receipt, of the Articles of Association of the Company, of
applicable laws and of the rules of the FCSD, and to the terms and conditions of
or governing the Deposited Securities, in each case as in effect at the time
thereof. It is expressly acknowledged by the Holders that the Company is a
member of the Finnish book entry systems for securities, and therefore Shares in
certificated form are not available, ownership of Shares is shown on an account
statement issued by authorized Finnish registrars and holding and transferring
of Shares are effected through such registrars or the FCSD subject in all cases
to applicable Finnish law, the Articles of Association of the Company and
Finnish market practice.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of surrender of ADSs 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
ADSs so surrendered and remit the proceeds of such sale (net of (if 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 Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of stock
or rights, which may at the time be held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder surrendering ADSs represented by this
Receipt, 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 Receipts. (a) Transfer. The
Registrar shall register the transfer of this Receipt (and of the ADSs
represented thereby) on the books maintained for such purpose and the Depositary
shall cancel this Receipt and execute new Receipts evidencing the same aggregate
number of ADSs as those evidenced by this Receipt when cancelled, shall cause
the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the person entitled thereto, if each of the
following conditions has been satisfied: (i) this Receipt 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 Receipt has been properly endorsed or is accompanied by
proper instruments of transfer (including signature guarantees in accordance
A-3
with standard securities industry practice), (iii) this Receipt has been duly
stamped (if required by the laws of the State of New York or of the United
States), 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 to the Deposit Agreement) have been paid, in
each case, however, subject to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
(b) Combination and Split-Up. The Registrar shall register the split-up or
combination of this Receipt (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall cancel this Receipt and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by this Receipt (when cancelled), shall
cause the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt 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 and Exhibit B to the Deposit Agreement) have been paid, subject,
however, in each case, to the terms and conditions of this Receipt, 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 transfer, split-up,
combination or surrender of any Receipt 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 a Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with 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 delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, 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 Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
A-4
Company or for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt 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
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section 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 Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with obligations of, and
requests from the Company pursuant to, Finnish law, the Finnish Securities
Market Act, the rules and requirements of the Helsinki Stock Exchange, and of
any stock exchange on which Shares or ADSs are or will be registered, traded or
listed, the Articles of Association of the Company, to provide information 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 persons then or
previously 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 reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any such
requests to the Holders and to forward to the Company any such responses to such
requests received by the Depository.
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under 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.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or 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 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
A-5
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, 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, employees and Affiliates for, and hold each of then
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.
(8) Representations and Warranties of Depositors. 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 and (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 the Share 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
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 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 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 or documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may 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. Subject to Article (24) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed, or such
representations and warranties made or such information and documentation are
provided, in each case to the Depositary's, the Registrar's and the Company's
satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
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(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of US. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraph (iii) and
(iv) below);
(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 US. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (i.e. upon the sale of rights and other
entitlements); no fee shall be payable for the distribution of
cash dividends or the distribution of ADSs pursuant to stock
dividends or other free distributions of shares as long as
such fees prohibited by the exchange upon which the ADSs are
listed.
(iv) to any Holder of ADRs, a fee not in the excess of US. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person 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;
(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.
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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 Receipt. 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.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary may deem and treat the Holder of this Receipt (that is,
the person in whose name this Receipt is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. The Depositary shall
have no obligation nor be subject to any liability under the Deposit Agreement
or this Receipt to any holder of this Receipt or any Beneficial Owner unless
such holder is the Holder of this Receipt 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 Receipt. This Receipt (and the Americana Depositary
Shares 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 Receipt 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
Receipts. Receipts 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 Receipt by the
Depositary.
(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with and submitted to
the SEC certain reports that can be retrieved from the SEC's internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference facilities
maintained by the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Company
has filed a Form 15F ("Form 15F") with the SEC, which has suspended the
Company's duty under the Exchange Act to file or submit the reports required
under Sections 13(a) or 15(d) of the Exchange Act. Upon the effectiveness of
Form 15F, the Company's duty to file or submit reports under Sections 13(a) or
15(d) of the Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations of the
Exchange Act provided by Rule 12g3-2(b). In order to satisfy the conditions of
Rule 12g3-2(b), the Company currently intends to publish the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its internet
website or through an electronic information delivery system generally available
to the public in the Company's primary trading market, and to translate the
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information so published into English in accordance with the instructions to
Rule 12g3-2(e). The Company has specified in Form 15F the internet website or
the electronic information delivery system on which it intends to publish such
information. The information so published by the Company cannot be retrieved
from the SEC's internet website, and cannot be inspected or copied at the public
reference facilities maintained by the SEC. If the Form 15F is not declared
effective, the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with and submit to
the SEC certain reports that can be retrieved from the SEC's internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference facilities
maintained by the SEC.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts 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 Receipts.
The Registrar may close the transfer books with respect to the Receipts,
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 Article (24)
hereof. Dated:
CITIBANK, N.A., CITIBANK, N.A.,
as Transfer Agent and Registrar as Depositary
By: ______________________________ By: ______________________________
Authorized Signatory Vice President
The address of the Corporate Agency Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000. The Depositary's Corporate
Agency Office is different from its Principal Executive Office. Its Principal
Executive Office is at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
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[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 Shares, rights securities or other entitlements
under 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 United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars (upon the terms of the Deposit Agreement) and will distribute promptly
the amount thus received (net of (a) 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 in proportion to the number of ADS
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. 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 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 or 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) 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 and interest in
the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net (a) of 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.
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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
distribute the net proceeds of any such sale (after deduction of (a) taxes and
fees and (b) charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms of the Deposit Agreement. 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, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
Record Date according to paragraph (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
dividend shall be distributed 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 distributed as in the case of a distribution in Shares.
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.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares (or any rights of any
other nature) 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 requested that such rights be made available to Holders, (ii)
the Depositary shall have received the documentation contemplated in 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 to
distribute rights to purchase additional ADSs (by means of warrants or
otherwise) and to enable the Holders to exercise the rights (upon payment of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes). Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not request the
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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 and private sale) as it may deem proper. The Depositary
shall, upon such sale, convert and distribute proceeds of such sale (net of
applicable fees and charges of, and expenses incurred by, the Depositary and
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 feasible 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 ADR 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
distribute such rights to the Holders unless and until a registration statement
under the Securities Act (or other applicable law) covering such offering is in
effect. 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 exercise rights on the same terms
and conditions as the holders of Shares or 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.
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 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 contemplated in the Deposit Agreement, and (iii) the Depositary
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shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received 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.
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 proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, 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 a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) mail 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 upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected on a pro rata basis. The redemption price per ADS shall be the
dollar equivalent of per share amount received by the Depositary upon the
redemption of the Deposited Securities represented by American Depositary Shares
(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 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, or any other matter, the Depositary shall fix a record
date ("ADS Record Date") for the determination of the Holders of Receipts 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
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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 and the terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such 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 Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company and at the Company's
expense) mail to Holders: (a) such notice of meeting or solicitation of consent
or proxies, (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of Association
and the provisions of or governing 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
Shares or other Deposited Securities represented by such Holder's ADS and (c) a
brief statement as to the manner in which such instructions may be given. Upon
the timely receipt of written instructions of a Holder of ADSs on the ADS Record
Date, 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 provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by ADSs held by
such Holder in accordance with such 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 Shares or other Deposited Securities represented by ADS except
pursuant to and in accordance with such written instructions from Holders. If
voting instructions are received by the Depositary from any Holder on or before
the date established by the Depositary for the receipt of such instructions,
which are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Shares or other Deposited
Securities represented by ADS for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted. 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 par 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 Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
A-14
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt
ofsatisf3ctory documentation contemplated by the Deposit Agreement, execute and
deliver additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipt,
in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of Receipt 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 receipt of satisfactory legal documentation contemplated in 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 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.
(19) Exoneration. Neither the Depositary nor the Company 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
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Finland or any other country, or of any other governmental
authority or regulatory authority or stock exchange, 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 OF 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 any 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 ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents 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.
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(20) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. 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 and the Company shall not incur any
liability for any failure to determine that any distribution or action may be
lawful or reasonably practicable, 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. The Depository shall not incur any liability 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, or 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.
(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 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
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
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. 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
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail 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.
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(22) Amendment/Supplement. This Receipt 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 in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. 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 as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt 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 amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt 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, or
rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 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 herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
A-17
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 Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, 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 Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver 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 Receipts 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 Receipt, 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 months from the date of termination of the
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
of Receipts whose Receipts 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 Receipts and the Shares, the Deposited
Securities and the ADSs, except 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 Receipt, 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). 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 Receipt 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 Section LA.(I) 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
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
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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) accompanied
by or 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 anyone 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 earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
A-19
(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 Receipt and all
rights thereunder, hereby irrevocably constituting and appointing
_____________________________________________ attorney-in-fact to transfer said
Receipt on the books of the Depositary with full power of substitution in the
premises.
Dated:
sSIGNATURE GUARANTEED BY:
Name:
By:
Title:
Signature: _________________________________
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 Receipt.
All endorsements or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
_______________________________ Securities Transfer Association, Inc.
A-20
Legends
[The Receipts issued in respect of Partial Entitlement American Depositary
Shares shall bear the following legend on the face of the- Receipt: "This
Receipt evidences American Depositary Shares representing partial entitlement'
[type of shares] of [Company] and as such do not entitle the holders thereof to
the same per-share entitlement as other [type of shares] Shares (which are "full
entitlement" [type of shares] Shares) issued and outstanding at such time. The
American Depositary Shares represented by this Receipt shall entitle holders to
distributions and entitlements identical to other American Depositary Shares
when the [type of shares] Shares represented by such American Depositary Shares
become "full entitlement" [type of shares] Shares.]
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