DEPOSIT AGREEMENT
by and
among
GEMALTO
N.V.
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as
of November ,
2009
DEPOSIT AGREEMENT, dated as of
November , 2009, by and among (i) Gemalto N.V., a public
company with limited liability organized under the laws of the Netherlands, with
corporate seat in Amsterdam, the Netherlands, and its successors (the
"Company"), (ii) Deutsche Bank Trust Company Americas, acting in its capacity as
depositary, and any successor depositary hereunder (the "Depositary"), and (iii)
all Holders and Beneficial Owners of American Depositary Shares evidenced by
American Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
W I T N E S S E T
H T H A T:
WHEREAS, the Company desires
to establish an ADR facility with the Depositary to provide for the deposit of
the Shares and the creation of American Depositary Shares representing the
Shares so deposited;
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in this Deposit Agreement; 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 Board of the
Company has duly approved the establishment of an ADR facility and has
authorized the Chief Executive Officer to implement such ADR facility on behalf
of the Company.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.2 "Agent" shall mean
such entity or entities as the Depositary may appoint under Section 7.10,
including the Custodian or any successor or addition thereto.
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SECTION
1.3 "American Depositary
Share(s)" and "ADS(s)" American Depositary Share(s) shall mean the
securities represented by 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 evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive one-half 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 4.9 with respect to which additional
American Depositary Receipts are not executed and delivered, and thereafter each
American Depositary Share shall represent the Shares or Deposited Securities
specified in such Sections.
SECTION
1.4 "ADS Record
Date" shall have the meaning given to such term in Section
4.7.
SECTION
1.5 "Beneficial Owner"
shall mean as to any ADS, any person or entity having a beneficial interest in
any ADSs. A Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs. A Beneficial Owner may exercise any rights or
receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION
1.6 "Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not (a) a day
on which banking institutions in the Borough of Manhattan, The City of New York
are authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
SECTION
1.8 "Company" shall mean
Gemalto N.V., a public company with limited liability organized under the laws
of the Netherlands, with corporate seat in Amsterdam, the Netherlands, and its
successors.
SECTION
1.9 "Custodian" shall
mean, as of the date hereof, Deutsche Bank AG, Amsterdam Branch, having its
principal office at Xxxxxxxxxxx 000-000, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, as
the custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereinafter be appointed by the Depositary pursuant to the
terms of Section 5.5 as a successor or an additional custodian or custodians
hereunder, as the context shall require. The term "Custodian" shall
mean all custodians, collectively.
SECTION
1.10 "Deliver" and
"Delivery" shall mean, when used in respect of American Depositary
Shares, Receipts, Deposited Securities and Shares, the physical delivery of the
certificate representing such security, the transfer of such security in
accordance with applicable law, or the electronic delivery of such security by
means of book-entry transfer, as appropriate, including, without limitation,
through DRS/Profile. With respect to DRS/Profile ADRs, the terms
"execute",
"issue", "register", "surrender", "transfer" or "cancel" refer to
applicable entries or movements to or within DRS/Profile.
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SECTION
1.11 "Deposit Agreement"
shall mean this Deposit Agreement and all exhibits hereto, as the same may from
time to time be amended and supplemented in accordance with the terms
hereof.
SECTION
1.15 "DRS/Profile" means
the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may be
given to allow for the automated transfer of ownership between the books of DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are
evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto.
SECTION
1.18 "Foreign Currency"
shall mean any currency other than Dollars.
SECTION
1.19 "Foreign Registrar"
shall mean the entity, if any, that carries out the duties of registrar for the
Shares or any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
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SECTION
1.25 "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 ownership of Receipts and transfer of Receipts as herein
provided, 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.
SECTION
1.28 "Shares" shall mean
ordinary shares in registered form of the Company, validly issued and
outstanding and fully paid. Reference to Shares shall include evidence of rights
to receive Shares, whether or not stated in the particular instance; provided, however, that in no
event shall Shares include evidence of rights to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which
pre-emptive 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,
reclassification, conversion or any other event described in Section 4.9, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event.
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APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION
2.2 Form and Transferability of
Receipts.
(a) Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in
denominations of any whole number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary. The Depositary shall
maintain books on which each Receipt so executed and delivered, in the case of
definitive Receipts, and each Receipt issued through the DRS/Profile, in either
case as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts in certificated form bearing the manual or
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts.
In
addition to the foregoing, the Receipts may, and at the request of the Company
shall, be endorsed with or have incorporated in the text thereof such legends or
recitals or modifications not inconsistent with the provisions of this Deposit
Agreement as may be reasonably required by the Depositary or the Company in
order to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
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Notwithstanding
anything in this Deposit Agreement or in the Receipt to the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the
Holder. Holders and Beneficial Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are certificated or issued through
DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof.
SECTION
2.3 Deposits. (a)
Subject to the terms and conditions of this Deposit Agreement and applicable
law, Shares 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 Foreign 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 issued in
registered form, appropriate instruments of transfer or endorsement, in a form
reasonably satisfactory to the Custodian, (ii) in the case of Shares issued in
bearer form, such Shares or the certificates representing such Shares 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, (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
or persons stated in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited, (D) evidence reasonably
satisfactory to the Depositary (which may include an opinion of counsel
reasonably satisfactory to the Depositary provided at the cost of the person
seeking to deposit Shares) that all conditions to such deposit have been met and
all necessary approvals have been granted by, and there has been compliance with
the rules and regulations of any applicable governmental agency in The
Netherlands and of the relevant stock exchange, and (E) if the Depositary so
requires, and if applicable, (i) an agreement, assignment or 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
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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. No Share shall be accepted for deposit
unless accompanied by confirmation or such additional 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 of the relevant stock exchange and any necessary approval has been granted
by any governmental body in The Netherlands, if any, which is then performing
the function of the regulator of currency exchange. Shares or
evidence of rights to receive Shares may be deposited by any person (including
by electronic transfer thereof) (i) in the case of Shares in registered form, by
inscription of ownership of such Shares in the name of the Depositary in the
Company's share register and in an account maintained by the Custodian as agent
on behalf of the Depositary or (ii) in the case of Shares in bearer form, in an
account maintained by the Custodian, as accredited financial institution, in the
name of the Depositary pursuant to appropriate instructions for transfer in a
form satisfactory to the Company or the Custodian, as the case may be. The
Depositary may issue Receipts 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. Without limiting any other
provision of this Deposit Agreement, the Depositary shall not (a) knowingly
accept for deposit any Restricted Securities nor (b) accept for deposit any
fractional Shares or fractional Deposited Securities. The Depositary
will use commercially reasonable efforts to comply with reasonable written
instructions of the Company that the Depositary shall not accept for deposit
hereunder any Shares specifically 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 in the
United States.
(c) 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 Depositary is authorized to take any and all actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the issuance of such ADSs and to ensure
that such ADSs are not fungible with other ADSs issued hereunder until such time
as the entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such deposit. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued contain rights different from those of any other Shares
theretofore issued and shall assist the Depositary with the establishment of
procedures enabling the identification of such non-fungible Shares upon Delivery
to the Custodian.
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SECTION
2.4 Execution and Delivery of
Receipts. After the deposit of
any Shares pursuant to Section 2.3, the Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be evidenced thereby. Such
notification shall be made by letter, first class airmail postage prepaid, or,
at the request, risk and expense of the person making the deposit, by cable,
telex, SWIFT, facsimile or electronic transmission. After receiving
such notice from the Custodian, the Depositary, subject to this Deposit
Agreement (including, without limitation, the payment of the fees, expenses,
taxes and other charges owing hereunder), shall issue the ADSs representing the
Shares so deposited to or upon the order of the person or persons named in the
notice delivered to the Depositary and shall execute and deliver a Receipt
registered in the name or names requested by such person or persons evidencing
in the aggregate the number of American Depositary Shares to which such person
or persons are entitled. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit
Agreement.
SECTION
2.5 Transfer of Receipts;
Combination and Split-up of Receipts.
(a) Transfer. The
Depositary, or, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed, the Registrar, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed in the case
of a certificated Receipt or accompanied by, or in the case of DRS/Profile
Receipts receipt by the Depositary of, proper instruments of transfer (including
signature guarantees in accordance with standard industry practice) and duly
stamped as may be required by the laws of the State of New York and of the
United States and any other applicable law. Subject to the terms and
conditions of this Deposit Agreement, including payment of the applicable fees
and charges of the Depositary set forth in Section 5.9 hereof and Article (9) of
the Receipt, the Depositary shall execute a new Receipt or Receipts and deliver
the same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
(b) Combination & Split
Up. The Depositary, subject to the terms and conditions of
this Deposit Agreement shall, upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or Receipts and
upon payment to the Depositary of the applicable fees and charges set forth in
Section 5.9 hereof and Article (9) of the Receipt, execute and deliver a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
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(c) Co-Transfer
Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In carrying
out its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Holders or persons
entitled to such Receipts and will be entitled to protection and indemnity, in
each case to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.5
(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.
(d) At
the request of a Holder, the Depositary shall, for the purpose of substituting a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, as the case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or DRS/Profile statement, as the case may
be, substituted.
SECTION
2.6 Surrender of Receipts and
Withdrawal of Deposited Securities. Upon surrender, at the
Principal Office of the Depositary, of American Depositary Shares for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals of Deposited Securities and cancellation of Receipts (as set forth
in Section 5.9 hereof and Article (9) of the Receipt) and (ii) all applicable
taxes and/or governmental charges payable in connection with such surrender and
withdrawal, and subject to the terms and conditions of this Deposit Agreement,
the Company’s Articles of Association, Section 7.8 hereof, Article (22) of the
Receipt and any other provisions of or governing the Deposited Securities and
other applicable laws, the Holder of such American Depositary Shares shall be
entitled to Delivery, to him or upon his order, of the Deposited Securities at
the time represented by the American Depositary Shares so
surrendered. American Depositary Shares may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such American Depositary Shares (if held in certificated form) or by book-entry
delivery of such American Depositary Shares to the Depositary.
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the other
terms and conditions of this Deposit Agreement, to the Company’s Articles of
Association, to the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written order of the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such American Depositary
Shares, together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as the case may
be, to or for the account of such person.
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The
Depositary shall not accept for surrender a number of American Depositary Shares
representing a number other than a whole number of Shares. In the
case of surrender of a Receipt evidencing a number of American Depositary Shares
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) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt 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 and governmental charges) to the person surrendering the
Receipt.
At the
request, risk and expense of any Holder so surrendering a 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 in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission. Upon receipt by the Depositary, the
Depositary may make delivery to such person or persons entitled thereto at the
Principal Office of the Depositary of any dividends or cash distributions with
respect to the Deposited Securities represented by such American Depositary
Shares, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
SECTION
2.7 Limitations on Execution and
Delivery, Transfer, etc. of Receipts; Suspension of Delivery, Transfer,
etc.
(a) Additional
Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, 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
the 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 Section 5.9 hereof and Article (9) of the Receipt,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1
hereof and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary Shares
or to the withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement and applicable law.
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(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 Receipts in particular instances may be refused,
or the registration of transfers of Receipts generally may be suspended, during
any period when the transfer books of the Depositary 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 Receipts or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8 hereof.
SECTION
2.9 Cancellation and Destruction
of Surrendered Receipts; Maintenance of Records. All Receipts
surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled in accordance with its
customary practices. Cancelled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose.
SECTION
2.10 Pre-Release. Subject
to the further terms and provisions of this Section 2.10, 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 may (i) issue ADSs prior to the receipt
of Shares (each such transaction a "Pre-Release Transaction") as provided below
and (ii) deliver Shares upon the receipt and cancellation of ADSs that were
issued in a Pre-Release Transaction, but for which Shares may not yet have been
received. 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
(1) 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, (2) 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, (3) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (4) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
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 fifteen percent (15%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above). The above number of ADSs and Shares
involved in such Pre-Release Transactions at any one time shall be revised at
the Company’s request, with five (5) Business Days’ notice. The Depositary will
request a written approval from the Company every time it deems appropriate to
disregard such limit, except to the extent that such limitation is exceeded as a
result of the withdrawal of Deposited Securities subsequent to the execution and
delivery of pre-released Receipts in compliance with such
limitation. 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.
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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).
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF RECEIPTS
13
SECTION
3.2 Liability for Taxes and
Other Charges. If any present or future tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any Shares, Deposited Securities, Receipts or ADSs, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary and such Holders and Beneficial Owners shall be deemed liable
therefor. 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 a 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, with the Holder and the Beneficial Owner remaining fully liable for
any deficiency. In addition to any other remedies available to it,
the Depositary and 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, the Company, the Custodian, and each of their
respective agents, officers, directors, 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. The obligations of Holders
and Beneficial Owners of Receipts under this Section 3.2 shall survive any
transfer of Receipts, any surrender of Receipts and withdrawal of Deposited
Securities, or the termination of this Deposit Agreement.
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 were 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 American Depositary Shares 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 American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. 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.
14
SECTION
3.4 Compliance with Information
Requests. Notwithstanding any other provision of this Deposit
Agreement, the Articles of Association of the Company and applicable law, each
Holder and Beneficial Owner agrees to (a) provide such information as the
Company or the Depositary may request pursuant to law (including, without
limitation, relevant Dutch law, any applicable law of the United States, the
Articles of Association of the Company, any resolutions of the Company’s Board
adopted pursuant to such Articles of Association, the requirements of any
markets or exchanges upon which the Shares, ADSs or Receipts are listed or
traded, or to any requirements of any electronic book-entry system by which the
ADSs or Receipts may be transferred, and (b) be bound by and subject to
applicable provisions of the laws of the Netherlands, the Articles of
Association of the Company and the requirements of any markets or exchanges upon
which the ADSs, Receipts or Shares are listed or traded, or pursuant to any
requirements of any electronic book-entry system by which the ADSs, Receipts or
Shares may be transferred, to the same extent as if such Holder and Beneficial
Owner held Shares directly, in each case irrespective of whether or not they are
Holders or Beneficial Owners at the time such request is made. 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.
Holders
of the Company’s Shares (including in principle holders of ADSs) may be subject
to notification obligations under the FMSA. Shareholders (including in principle
holders of ADSs) are advised to seek professional advice on these
obligations.
Shareholders
Pursuant
to the Financial Markets Supervision Act (Wet op het financieel toezicht) (the
“FSMA”), any person who, directly or indirectly, acquires or disposes of an
interest in the capital or voting rights of the Company must immediately notify
the Authority for the Financial Markets (Stichting Autoriteit Financiële
Markten) (the “AFM”) by means of a standard form, if, as a result of such
acquisition or disposal, the percentage of capital interest or voting rights
held by such person in the Company reaches, exceeds or falls below any of the
following thresholds: 5% (a xxxx is prepared to reduce this to 3%), 10%, 15%,
20%, 25%, 30%, 40%, 50%, 60%, 75% and 95% of the voting rights or capital
interests in the issued capital of the Company.
A
notification requirement also applies if a person’s capital interest or voting
rights reaches, exceeds or falls below the abovementioned thresholds as a result
of a change in the Company’s total share capital or voting rights. Such
notification has to be made no later than the fourth trading day after the AFM
has published the Company’s notification as described below.
The
Company is required to notify the AFM immediately of the changes to its total
share capital or voting rights if its share capital or voting rights changes by
1% or more since the Company’s previous notification. the Company must
furthermore quarterly notify the AFM within eight days after the relevant
quarter, in the event its share capital or voting rights changed by less than 1%
in that relevant quarter since the Company’s previous notification.
Furthermore,
every holder of 5% or more of the Company’s share capital or voting rights whose
interest at 31 December at 12 midnight differs from a previous notification to
the AFM, as a result of certain acts (including but not limited to the exchange
of Company’s Shares for depository receipts and the exercise of a right to
acquire Company’s Shares) must notify the AFM within four weeks.
Controlled
entities, within the meaning of the FMSA, do not have notification obligations
under the FMSA, as their, direct and indirect, interests are attributed to their
(ultimate) parent. Any person may qualify as a parent for purposes of the FMSA,
including an individual. A person who has a 5% or larger interest in the
Company’s share capital or voting rights and who ceases to be a controlled
entity for these purposes must immediately notify the AFM. As of that moment,
all notification obligations under the FMSA will become applicable to the former
controlled entity.
15
For the
purpose of calculating the percentage of capital interest or voting rights,
among other metrics, the following interests must be taken into account: (i) the
Company’s Shares or voting rights on the Company’s Shares directly held (or
acquired or disposed of) by a person, (ii) the Company’s Shares or voting rights
on the Company’s Shares held (or acquired or disposed of) by such person’s
subsidiaries or by a third party for such person’s account or by a third party
with whom such person has concluded an oral or written voting agreement
(including a discretionary power of attorney), and (iii) the Company’s Shares or
voting rights on the Company’s Shares which such person, or any subsidiary or
third party referred to above, may acquire pursuant to any option or other right
held by such person (or acquired or disposed of, including, but not limited to,
on the basis of convertible bonds).
Special
rules apply with respect to the attribution of Company’s Shares or voting rights
on the Company’s Shares which are part of the property of a partnership or other
community of property. A holder of a pledge or right of usufruct (vruchtgebruik)
in respect of the Company’s Shares can also be subject to the notification
obligations of the FMSA, if such person has, or can acquire, the right to vote
on the Company’s Shares or, in the case of depository receipts, the underlying
Company’s Shares. The acquisition of (conditional) voting rights by a pledgee or
usufructuary may also trigger the notification obligations as if the pledgee or
beneficial owner were the legal holder of the Company’s Shares or voting rights
on the Company’s Shares.
Non-compliance
with the notification obligations under the FMSA could lead to criminal fines,
administrative fines, imprisonment or other sanctions. In addition,
non-compliance with some of the notification obligations under the FMSA may lead
to civil sanctions, including suspension of the voting rights relating to the
Company’s Shares held by the offender for a period of not more than three years
and a prohibition applicable to the offender to obtain the disposal of the
Company’s Shares or voting rights on the Company’s Shares for a period of not
more than five years.
Public
registry
The AFM
does not issue separate public announcements of these notifications. It does,
however, keep a public register of all notifications under the FMSA on its
website xx.xxx.xx. Third parties can request to be notified automatically by
e-mail of changes to the public register in relation to a particular company’s
shares or a particular notifying party.
16
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 Shares,
rights, securities or other entitlements 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 4.6 hereof)
be converted on a practicable basis into Dollars transferable to the United
States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders of record as of the ADS Record Date in
proportion to the number of American Depositary Shares held by such Holders
respectively 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. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. Holders and Beneficial Owners understand that in
converting Foreign Currency, amounts received on conversion are calculated at a
rate which exceeds three or four decimal places (the number of decimal places
used by the Depositary to report distribution rates). The excess
amount may be retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and shall
not be subject to escheatment. 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 American Depositary Shares 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. The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, such reports necessary to
obtain benefits under the applicable tax treaties for the Holders and Beneficial
Owners of Receipts.
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 4.7 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, 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 (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and/or governmental charges), or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional 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 and governmental charges). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. The Depositary may withhold any such
distribution of Receipts if it has not received reasonably satisfactory
assurances from the Company (including an opinion of counsel to the Company
furnished at the expense of the Company) that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of the Securities Act. To
the extent such distribution may be withheld, the Depositary may dispose of all
or a portion of such distribution 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 applicable (a) taxes and/or governmental charges and (b) fees and
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms described in Section 4.1.
17
SECTION
4.3 Elective Distributions in
Cash or Shares. Whenever the Company intends to distribute a
dividend payable at the election of the holders of Shares in cash or in
additional Shares, the Company shall give notice thereof to the Depositary in a
timely manner prior to the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of
ADSs. Upon 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 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 is available to Holders of ADRs, (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 including, without limitation, any legal opinions of counsel in any
applicable jurisdiction that the Depositary in its reasonable discretion may
request, at the expense of the Company. 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 local
market 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 4.7) and establish procedures to enable
Holders to elect the receipt of the proposed dividend in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. Subject to Section 5.9 hereof, if
a Holder elects to receive the proposed dividend (x) in cash, the dividend shall
be distributed upon the terms described in Section 4.1, or (y) in ADSs, the
dividend shall be distributed 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 dividend 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 to
Purchase Shares.
(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 in a timely manner prior
to the proposed distribution stating whether or not it wishes such rights to be
made available to Holders of ADSs. Upon 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 determine, 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 lawful
and reasonably practicable. In the event any of the conditions set
forth above are not satisfied, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) below or, if timing or market
conditions may not permit, do nothing thereby allowing such rights to
lapse. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.7) and establish procedures (x) to distribute such rights (by means of
warrants or otherwise) and (y) 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 and other governmental
charges). 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).
18
(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 lawful or 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 or otherwise,
at such place and upon such terms (including public or private sale) as it may
deem proper. The Company shall 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 and governmental charges) upon the terms set forth in
Section 4.1.
(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 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 and/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 (and/or
such other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes to the Depositary at the Company’s expense opinion(s) of
counsel to the Company in the United States 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 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 and charges.
19
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 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 notice thereof to the Depositary in a timely manner prior to
the proposed distribution and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such distribution 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 timely 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 may 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 such Holders 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
and other governmental charges 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.
20
(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 that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
endeavor to 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
distribute the net proceeds, if any, of such sale received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) 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 in any
way it deems reasonably practicable under the circumstances for nominal or no
consideration and Holders and Beneficial Owners shall have no rights thereto or
arising therefrom.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem necessary, practicable and at
nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any
time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the
same.
21
SECTION
4.7 Fixing of Record
Date. Whenever necessary in connection with 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 American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of or solicitation of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it reasonably
necessary, the Depositary shall fix a record date (the "ADS Record Date"), as
close as practicable to the record date fixed by the Company with respect to the
Shares (if applicable), for the determination of the Holders 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 American Depositary Share, or for any other reason. Subject
to applicable law and the provisions of Section 4.1 through 4.6 and to the other
terms and conditions of this Deposit Agreement, only the Holders of record 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
4.8 Voting of Deposited
Securities. Subject to the next sentence, 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 consent or proxy.
The Depositary shall, if requested by the Company in a timely manner and at the
Company’s expense and provided no U.S. legal prohibitions exist, mail by
regular, ordinary mail delivery (or by electronic mail or as otherwise may be
agreed between the Company and the Depositary in writing from time to time) or
otherwise 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 Company’s Articles of Association 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 Shares or other
Deposited Securities represented by such Holder's American Depositary Shares;
and (c) a brief statement as to the manner in which such instructions may be
given, including an express indication that instructions may be given (or be
deemed to be given in accordance with the following paragraph of this section if
no instruction is received) to the Depositary to give a discretionary proxy to a
person or persons designated by the Company. Voting instructions may
be given only in respect of a number of American Depositary Shares representing
an integral and whole number of Shares or other Deposited
Securities. Upon the timely receipt of written instructions of a
Holder of American Depositary Shares on the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of this Deposit Agreement, the Company’s Articles of Association and
the provisions of or governing the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities (in person or by
proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions.
22
In the
event that the Depositary (a) 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 or (b) if no instructions
are received by the Depositary from a Holder with respect to any of the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs on
or before the ADS Record Date established by the Depositary for such purpose,
the Depositary shall (unless otherwise specified in the notice distributed to
Holders) deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
however, that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing, if applicable) that (x) the
Company does not wish to give such proxy, (y) the Company is aware or should
reasonably be aware that substantial opposition exists from Holders against the
outcome for which the person designated by the Company would otherwise vote or
(z) the outcome for which the person designated by the Company would otherwise
vote would materially and adversely affect the rights of holders of
Shares. 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 for purposes of establishing a quorum or otherwise, the Shares
or other Deposited Securities represented by ADSs, except pursuant to and in
accordance with such written instructions from Holders, including the deemed
instruction to the Depositary to give a discretionary proxy to a person
designated by the Company.
Notwithstanding
the above, save for applicable provisions of Dutch law, and in accordance with
the terms of Section 5.3, the Depositary shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities or the manner
in which such vote is cast or the effect of any such vote.
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner 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.
23
SECTION
4.9 Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
subdivision cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of assets affecting the Company or to
which it is otherwise a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
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 Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. Alternatively, 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 of an opinion
of counsel to the Company, furnished at the expense of the Company, reasonably
satisfactory to the Depositary that such distributions are not in violation of
any applicable laws or regulations, execute and deliver additional Receipts as
in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in Exhibit A hereto, specifically describing such new
Deposited Securities and/or corporate change. The Company agrees to, jointly
with the Depositary, amend the Registration Statement on Form F-6 as filed with
the Commission to permit the issuance of such new form of Receipts.
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 an
opinion of counsel to the Company, furnished at the expense of the Company,
reasonably satisfactory to the Depositary 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 and governmental charges) 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.
The
Company represents that as of the date of this Deposit Agreement, the statements
in this Section 4.10 and in Article (12) of the Receipts with respect to the
exemption from registration under Rule 12g3-2(b) under the Securities Exchange
Act of 1934, as amended, are true and correct. The Company agrees to
promptly notify the Depositary and all Holders in the event of any change in the
truth of any such statements.
SECTION
4.10 Available
Information. As of the date of the Deposit Agreement, the
Company publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Exchange Act on its Internet Web
site (xxx.xxxxxxx.xxx) or through an electronic information delivery system
generally available to the public in its primary trading market. Should the
Company become subject to the periodic reporting or other informational
requirements under the Securities Exchange Act of 1934, it will be required in
accordance therewith to file reports and other information with the U.S.
Securities and Exchange Commission. The Depositary does not assume
any duty to determine if the Company is complying with the current requirements
of Rule 12g3-2(b) under the Exchange Act or to take any action if the Company is
not complying with those requirements.
24
SECTION
4.11 Reports. The
Depositary shall make available during normal business hour on any Business Day
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 Company agrees to provide to the Depositary, at the
Company’s expense, all documents that it provides to the
Custodian. The Depositary shall, at the expense of the Company and in
accordance with Section 5.6, also mail by regular, ordinary mail delivery or by
electronic transmission (if agreed by the Company and the Depositary) and unless
otherwise agreed in writing by the Company and the Depositary, to Holders copies
of such reports when furnished by the Company pursuant to Section
5.6.
SECTION
4.13 Taxation;
Withholding. 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 necessary tax reports with governmental authorities or agencies.
The Depositary, the Custodian or the Company and its agents may, but shall not
be obligated to, 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. Holders and Beneficial Owners of American Depositary Shares 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.
The
Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes and/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: (i) any taxes withheld by
it; (ii) any taxes withheld by the Custodian, subject to information being
provided to the Depositary by the Custodian; and (iii) any taxes withheld by the
Company, subject to information being provided to the Depositary 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 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. Neither the
Depositary, the Custodian nor the Company 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.
25
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 charge which the Depositary is obligated to withhold, the
Depositary shall withhold the amount required to be withheld and may by public
or private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes and charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes and charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. Neither the
Depositary nor the Company shall incur any liability for any tax consequences
that may be incurred by Holders and Beneficial Owners on account of their
ownership of the American Depositary Shares.
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
The
Depositary or the Registrar as applicable, shall keep books for the registration
of Receipts 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 Depositary’s or 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 this Deposit Agreement or the Receipts.
The
Depositary or the Registrar, as applicable, 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 connection with the performance of its duties
hereunder.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts 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.
26
If any
Receipts or the American Depositary Shares evidenced thereby are listed by the
Company on one or more securities exchanges, markets or automated quotation
systems, (i) the Depositary shall be entitled to, and shall, take or refrain
from taking such action(s) as it may deem necessary or appropriate to comply
with the requirements of such securities exchange(s), market(s) or automated
quotation system(s) applicable to it, notwithstanding any other provision of
this Deposit Agreement; and (ii) upon the reasonable request of the Depositary,
the Company shall provide the Depositary such information and assistance as may
be reasonably necessary for the Depositary to comply with such requirements, to
the extent that the Company may lawfully do so.
SECTION
5.2 Exoneration. Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or 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
this Deposit Agreement, by reason of any provision of any present or future law
or regulation of the United States or any state thereof, The 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 Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any 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 American
Depositary Shares or (v) for any special, consequential, indirect or punitive
damages for any breach of the terms of this Deposit Agreement or
otherwise.
The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion 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.
27
SECTION
5.3 Standard of
Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under this
Deposit Agreement or any Receipts to any Holder(s) or Beneficial Owner(s) or
other persons (except for the Company’s and the Depositary’s obligations
specifically set forth in Section 5.8), provided, that the Company and the
Depositary and their respective agents agree to perform their respective
obligations specifically set forth in this Deposit Agreement or the applicable
ADRs without gross negligence or bad faith.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, Affiliates, 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 Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
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 (provided that any action or omission is in good faith and in
accordance with the terms of this Deposit Agreement) or the effects of any
vote. 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, or for any action or non action by
it in reliance upon the opinion, advice of or information from legal counsel,
accountants, any person representing Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents shall not be liable for
any acts or omissions made by a successor depositary whether in connection with
a previous act or omission of the Depositary or in connection with any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without gross negligence or bad faith while
it acted as Depositary.
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 60th day after delivery thereof to the Company (whereupon the
Depositary shall, in the event no successor depositary has been appointed by the
Company, 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, save that, any amounts,
fees, costs or expenses owed to the Depositary hereunder or in
accordance with any other agreements otherwise agreed in writing between the
Company and the Depositary from time to time shall be paid to the
Depositary prior to such resignation.
28
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 60th 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, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such
removal.
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. The Company shall give notice to the Depositary of the
appointment of a successor depositary not more than 60 days after delivery by
the Depositary of written notice of resignation or by the Company of removal,
each as provided in this section. In the event that a successor
depositary is not appointed or notice of the appointment of a successor
depositary is not provided by the Company in accordance with the preceding
sentence, the Depositary shall be entitled to take the actions contemplated in
Section 6.2 hereof. 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 to 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 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.
SECTION
5.5 The
Custodian. 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 Deposited Securities 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 promptly appoint a substitute custodian. 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 appoint an additional entity to act as 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. After
any such change, the Depositary shall give notice thereof in writing to all
Holders.
29
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
English 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 any applicable provisions or proposed
provisions of the Company’s Articles of Association 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 (a) 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 and (b)
English language versions of the Company's annual and other reports prepared in
accordance with the applicable requirements of the Commission under Rule
12g3-2(b), unless such materials are available on the Company’s internet
website. The Depositary shall arrange, at the request of the Company
and at the Company’s expense, for the mailing of copies thereof to all Holders,
or by any other means as agreed between the Company and the Depositary (at the
Company’s expense) or make such notices, reports and other communications
available for inspection by all Holders, provided, that, the Depositary shall
have received evidence sufficiently satisfactory to it, including in the form of
an opinion of local and/or U.S. counsel or counsel of other applicable
jurisdiction, furnished at the expense of the Company, as the Depositary in its
discretion so requests, that the distribution of such notices, reports and any
such other communications to Holders from time to time is valid and does not or
will not infringe any local, U.S. or other applicable jurisdiction regulatory
restrictions or requirements if so distributed and made available to
Holders. The Company will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings. 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 or
any Affiliate of the Company, in connection with the Shares, in each case along
with a certified English translation thereof, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein (along with a
certified English translation thereof). The Depositary may rely upon such copy
for all purposes of this Deposit Agreement.
30
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 Receipts evidencing the
American Depositary Shares 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.
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, subdivision, amalgamation or consolidation or
transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, amalgamation, 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, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of
the foregoing or at the reasonable request of the Depositary where it deems
necessary, the Company will furnish to the Depositary, at the expense of the
Company (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 is exempt from the registration requirements of the
Securities Act and/or (2) dealing with such other reasonable issues requested by
the Depositary and (b) an opinion of Dutch counsel (reasonably satisfactory to
the Depositary) stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of The
Netherlands and (2) 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
and that such distribution is in accordance with all applicable laws or
regulations. 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.
31
The
Company agrees with the Depositary that neither the Company nor any 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 or have been registered under the Securities 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.
SECTION
5.8 Indemnification. The
Company agrees to indemnify the Depositary, any Custodian and each of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct losses, liabilities, taxes, costs,
claims, judgments, proceedings, actions, demands and any charges or expenses of
any kind whatsoever (including, but not limited to, reasonable attorney’s fees
and expenses and, in each case, fees and expenses of counsel, in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed in
respect thereof) (collectively referred to as “Losses”) which the Depositary or
any agent thereof may incur or which may be made against it as a result of or in
connection with its appointment or the exercise of its powers and duties under
this Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American
Depositary Shares, the Shares, or other Deposited Securities, as the case may
be, (b) out of or in connection with any offering documents in respect thereof
or (c) out of or in connection with 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
Receipts, the American Depositary Shares, 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 any such Losses directly arise out
of the negligence, willful misconduct or bad faith of any of them, or (ii) by
the Company or any of its directors, officers, employees, agents and Affiliates.
Notwithstanding the above, in no event shall the Company or any of its
directors, officers, employees, agents and/or Affiliates be liable for any
indirect, special, punitive or consequential damages to the Depositary, Holders,
Beneficial Owners or any other person.
The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.10) of American Depositary Shares in accordance with
Section 2.10 and which would not otherwise have arisen had such American
Depositary Shares not been the subject of a Pre-Release pursuant to Section
2.10; provided, however, that the indemnities provided in the preceding
paragraph shall apply to any such liability or expense (i) to the extent that
such liability or expense would have arisen had the American Depositary Shares
not be the subject of a Pre-Release, or (ii) which may arise out of any
misstatement or alleged misstatement or omission or alleged omission in any
registration statement, proxy statement, prospectus (or placement memorandum),
or preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary or
any Custodian (other than the Company), as applicable, furnished in writing by
the Depositary and not materially changed or altered by the Company expressly
for use in any of the foregoing documents, or, (ii) if such information is
provided by the Depositary, the failure to state a material fact necessary to
make the information provided not misleading.
32
The
Depositary agrees to indemnify the Company against any loss, liability or
expense (including reasonable fees and expenses of counsel) incurred by it in
respect of this Agreement to the extent such loss, liability or expense is due
to the negligence, willful misconduct or bad faith of the
Depositary. Notwithstanding the above, in no event shall the
Depositary or any of its directors, officers, employees, agents and/or
Affiliates be liable for any indirect, special, punitive or consequential
damages to the Company, Holders, Beneficial Owners or any other
person.
If any
action, claim or proceeding shall be brought or threatened to be brought against
any party in respect of which indemnity may be sought pursuant to this Section
5.8 (the "Indemnified Party"), the Indemnified Party shall as soon as
practicable (or, in the case of any action or claim which is threatened to be
brought, as soon as practicable after such Indemnified Party becomes aware of
the same) notify the party against whom indemnity may be sought (the
"Indemnifying Party") in writing of such action, claim or proceeding, and the
Indemnifying Party shall be entitled to participate therein and, to the extent
that it wishes, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party; provided, however, that if the
Indemnified Party reasonably believes that there may be legal defenses available
to it which are different from or in addition to those available to the
Indemnifying Party it may retain counsel at its expense and participate in such
defense. In all circumstances, all other parties hereto shall provide to
the party against whom such action or claim is brought or threatened to be
brought such information and assistance as such party shall reasonably request,
subject to the provisions of the indemnity contained in this Section 5.8.
Each party shall, to the extent reasonable, practicable and consistent
with such party's legal obligations and responsibilities, in all circumstances
consult with each of the other parties as and when reasonably requested by such
party in respect of any action or claim referred to in this Section 5.8.
After notice from the Indemnifying Party to the Indemnified Party of its
election to assume the defense of such claim or action, the Indemnifying Party
shall not be liable to the Indemnified Party for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense or
investigation thereof. In no event shall the Indemnifying Party, in
connection with any one such proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for fees and expenses of more
than one counsel in each such jurisdiction). The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld.
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
33
SECTION
5.9 Fees and Charges of
Depositary. 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 as provided
for under Article (9) of the Receipt. 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.
The
Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 6.1
hereof.
In
connection with any payment by the Company to the Depositary:
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(i)
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all
fees, taxes, duties, charges, costs and expenses which are payable by the
Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company upon demand therefor);
and
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(ii)
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such
payment shall be subject to all necessary Dutch exchange control and other
consents and approvals having been obtained. The Company undertakes to use
its reasonable endeavours to obtain all necessary approvals that are
required to be obtained by it in this
connection.
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(iii)
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the
Depositary may request, in its sole but reasonable discretion after
reasonable consultation with the Company, an opinion of counsel regarding
U.S. federal or state law, the laws of France, or the laws of any other
relevant jurisdiction, to be furnished at the expense of the Company, if
at any time it deems it necessary to seek such an opinion of counsel
regarding the validity of any action to be taken or instructed to be taken
under this Agreement.
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The
Company agrees to promptly pay to the Depositary such other expenses, fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to 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. In the discretion of the Depositary, the Depositary
shall present its statement for such expenses and fees or charges to the Company
upon receipt or payment of any relevant invoice by the Depositary, once every
three months, semiannually or annually.
All
payments by the Company to the Depositary under this Section 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
34
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 Restricted Securities
Owners. The Company agrees to provide to the Depositary
a list setting forth, to the actual knowledge of the Company, each of the
persons or entities who holds Restricted Securities and to advise each of the
persons or entities so listed that such Restricted Securities are
ineligible for deposit hereunder. The Company shall inform Holders and Beneficial
Owners and the Depositary of any other limitations on ownership of Shares that
the Holders and Beneficial Owners may be subject to by reason of the number of
American Depositary Shares held under the Articles of Incorporation of the
Company or applicable French law, as such restrictions may be in force from time
to time.
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 Receipts
outstanding at any time, the provisions of this Deposit Agreement and the form
of Receipt 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 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 Receipts until 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 American
Depositary Shares to be registered on Form F-6 under the Securities Act or (b)
the American Depositary Shares or the Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to 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 American Depositary Share or Shares,
to consent and agree to such amendment or supplement and to be bound by the
Deposit Agreement as amended and 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, 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 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, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. The Depositary agrees
to mail the notice of termination setting the termination date within ten
business days of actual receipt from the Company of a notice of
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 Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.6 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes and/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 this 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 this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights or other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.6, 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 this Deposit Agreement and
any applicable taxes and/or governmental charges or assessments). At any time
after the expiration of six 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 of
Receipts whose Receipts 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 Receipts and the Shares, Deposited Securities and
American Depositary Shares, 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 this
Deposit Agreement and any applicable taxes and/or governmental charges or
assessments). 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 hereunder.
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 hereto 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 Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Holders and Beneficial
Owners as Parties; Binding Effect. The Holders and Beneficial
Owners from time to time of American Depositary Shares shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any Receipt by acceptance hereof or any beneficial interest
therein.
37
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,
facsimile transmission or electronic transmission, confirmed by letter,
addressed to Gemalto N.V., Xxxxxxx Xxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx, Attention: Chief Financial Officer, 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,
facsimile transmission or by electronic transmission (if agreed by the Company
and the Depositary), at the Company’s expense, unless otherwise agreed in
writing between the Company and the Depositary, confirmed by letter, addressed
to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, XXX Attention: ADR Department,
telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000 or to any other address
which the Depositary may specify in writing to the Company.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex, facsimile transmission or
by electronic transmission (if agreed by the Company and the Depositary), at the
Company’s expense, unless otherwise agreed in writing between the Company and
the Depositary, addressed to such Holder at the address of such Holder as it
appears on the transfer books for Receipts of the Depositary, or, if such Holder
shall have filed with the Depositary a written request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request. Notice to Holders shall be deemed to be notice to Beneficial Owners for
all purposes of this Deposit Agreement.
Delivery
of a notice sent by mail, air courier or cable, telex, facsimile or electronic
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, facsimile or electronic transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex, facsimile or electronic
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex, facsimile or electronic transmission shall not
subsequently be confirmed by letter as aforesaid, as the case may
be.
38
SECTION
7.6 Governing Law and
Jurisdiction. This Deposit Agreement and the Receipts shall be
interpreted in accordance with, and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, the laws of the State of New
York without giving effect to any choice or conflict of law provision (of that
or any other jurisdiction) that would cause the application of laws of any
jurisdiction other than the state of New York. 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 Gemalto Inc., Austin Ste 400,
Arboretum Plaza II 0000 Xxxxxxx xx Xxxxx Xxx Xxxxx Xxxxxx, Xxxxx
00000, as its authorized agent 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 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 the City of 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 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.
Each of
the Company and the Depositary 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 and the Depositary agree that, notwithstanding the foregoing, with
regard to any claim or dispute or difference of whatever nature between the
parties hereto arising directly or indirectly from the relationship created by
this Deposit Agreement, the Depositary, in its sole discretion, shall be
entitled to refer such dispute or difference for final settlement by arbitration
(“Arbitration”) in accordance with the applicable rules of the American
Arbitration Association (the “Rules”) then in force, by a sole arbitrator
appointed in accordance with the Rules. The seat and place of any
reference to Arbitration shall be New York, New York State. The
procedural law of any Arbitration shall be New York law and the language to be
used in the Arbitration shall be English. The fees of the arbitrator and other
costs incurred by the parties in connection with such Arbitration shall be paid
by the party that is unsuccessful in such Arbitration.
39
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
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.
SECTION
7.10 Agents. The
Depositary shall be entitled, in its sole but reasonable discretion, to appoint
one or more agents (the "Agents") of which it shall have control for the
purpose, inter alia, of
making distributions to the Holders or otherwise carrying out its obligations
under this Agreement.
SECTION
7.11 Exclusivity. The
Company agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as Depositary
hereunder.
40
IN
WITNESS WHEREOF, Gemalto N.V. and Deutsche Bank Trust Company Americas have duly
executed this 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 American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof.
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GEMALTO
N.V.
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By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
DEUTSCHE
BANK TRUST COMPANY AMERICAS
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
41
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Number
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CUSIP
American Depositary
Shares
(Each American Depositary Share representing one-half of one Fully Paid Ordinary Share) |
EXHIBIT
A
[FORM
OF FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
GEMALTO
N.V.
(A public
company with limited liability organized under the laws of The
Netherlands)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary (herein called 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
Gemalto N.V. (the “Company”), a public company with limited liability organized
under the laws of The Netherlands, with corporate seat in Amsterdam, the
Netherlands (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each ADS represents one-half of one Share deposited
under the Deposit Agreement with the Custodian which at the date of execution of
the Deposit Agreement is Deutsche Bank AG, Amsterdam Branch (the "Custodian").
The ratio of Depositary Shares to shares of stock is subject to subsequent
amendment as provided in Article IV of the Deposit Agreement. The
Depositary’s Principal Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, U.S.A..
A-1
(1) The Deposit
Agreement. This American Depositary Receipt is one of an issue
of American Depositary Receipts ("Receipts"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of
November___, 2009 (as amended 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 Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
conditions 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, other 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
owner 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, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the 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 the 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 the Deposit
Agreement and the applicable ADR(s), 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 Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Association
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, 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 American Depositary Shares into
DTC. Each Beneficial Owner of American Depositary Shares 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 American Depositary
Shares. The Receipt evidencing the American Depositary Shares held
through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt 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).
A-2
(2) Surrender of Receipts and
Withdrawal of Deposited Securities. Upon surrender, at the
Principal Office of the Depositary, of ADSs evidenced by this Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of withdrawals of Deposited Securities and cancellation of Receipts (as
set forth in Article (9) hereof and in Section 5.9 of the Deposit Agreement) and
(ii) all applicable taxes and/or governmental charges payable in connection with
such surrender and withdrawal, and, subject to the terms and conditions of the
Deposit Agreement, the Company’s Articles of Association, Section 7.8 of the
Deposit Agreement, Article (22) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder of the
American Depositary Shares evidenced hereby is entitled to Delivery, to him or
upon his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such
Deposited Securities may be delivered in certificated form or by electronic
delivery. ADS may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such ADS (if held in certificated
form) or by book-entry delivery of such ADS to the Depositary.
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of the
Deposit Agreement, to the Company’s Articles of Association, and to the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect) or through a book entry Delivery of the Shares, to or upon
the written order of the person or persons designated in the order delivered to
the Depositary as provided above, the Deposited Securities represented by such
ADSs, together with any certificate or other proper documents of or relating to
title for the Deposited Securities or evidence of the electronic transfer
thereof (if available) as the case may be to or for the account of such
person.
The
Depositary shall not accept for surrender a number of American Depositary Shares
representing a number other than a whole number of Shares. In the
case of surrender of a Receipt evidencing a number of American Depositary Shares
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) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt 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 and governmental charges) to the person surrendering the
Receipt.
At the
request, risk and expense of any Holder so surrendering a 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 in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
A-3
(3) Transfers, Split-Ups and
Combinations of Receipts. The Depositary, or, if a Registrar
(other than the Depositary) for the Receipts shall have been appointed, the
Registrar, shall register transfers of Receipts on its books, upon surrender at
the Principal Office of the Depositary of a Receipt by the Holder thereof in
person or by duly authorized attorney, properly endorsed (in the case of a
certificated Receipt) or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by the laws of the State of New York and of
the United States of America and of any other applicable
jurisdiction. Subject to the terms and conditions of the Deposit
Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute a new Receipt or Receipts (and if
necessary, cause the Registrar to countersign such Receipt or Receipts) and
deliver same to or upon the order of the person entitled to such Receipts
evidencing the same aggregate number of ADSs as those evidenced by the Receipts
surrendered. Upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts upon payment of
the applicable fees and charges of the Depositary, and subject to the terms and
conditions of the Deposit Agreement, the Depositary shall execute and deliver a
new Receipt or Receipts for any authorized number of ADSs requested, evidencing
the same aggregate number of ADSs as the Receipt or Receipts
surrendered.
(4) Pre-Conditions to
Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, 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
the 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 reasonably 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 or delivery of Deposited Securities and
(B) such reasonable regulations as the Depositary or the Company may establish
consistent with the Deposit Agreement and applicable law.
A-4
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
Receipts in particular instances may be refused, or the registration of transfer
of Receipts generally may be suspended, during any period when the transfer
books of the Depositary 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 Shares
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
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts 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.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limiting any other provision of this Deposit
Agreement, the Depositary shall not (a) knowingly accept for
deposit any Restricted Securities nor (b) accept for deposit any
fractional Shares or fractional Deposited Securities.
(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 requests from the Company pursuant to
the laws of The Netherlands and any stock exchange on which the Shares are, or
will be registered, traded or listed, the Company’s Articles of
Association, which are made to provide information as to the capacity in which
such Holder or Beneficial Owner owns ADSs and regarding the identity of any
other person interested in such ADSs and the nature of such interest and various
other matters whether or not they are Holders and/or Beneficial Owner at the
time of such request. The Depositary agrees to use reasonable efforts to forward
any such requests to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
(6) Liability of Holder for
Taxes, Duties and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any Shares, Deposited Securities, ADSs or Receipts, such tax, or
other governmental charge shall be payable by the Holders and Beneficial Owners
to the Depositary and such Holders and Beneficial Owners shall be deemed liable
therefor. 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 and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, with the
Holder and the Beneficial Owner hereof remaining fully liable for any
deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADSs, register the transfer,
split-up or combination of ADRs and (subject to Article (22) 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 each of their
respective agents, officers, directors, employees and Affiliates for, and 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-5
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
(7) 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 were 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 and the issuance,
cancellation and transfer of 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.
(8) 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 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 or other information as the Depositary 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 (22) hereof and the terms of the Deposit Agreement, the
Depositary and the Registrar, as applicable, may, and upon the request of the
Company shall, 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 certifications are executed, or
such representations and warranties made, or such information and documentation
are provided.
(9) Charges of
Depositary. The Depositary shall charge the following fees for
the services performed under the terms of the Deposit Agreement; provided,
however, that no fees shall be payable upon distribution of cash dividends so
long as the charging of such fee is prohibited by the exchange, if any, upon
which the ADSs are listed:
(i) to
any person to whom ADSs are issued or to any person to whom a distribution is
made in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock
splits or other distributions (except where converted to cash), a fee not
in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so issued under the
terms of the Deposit Agreement to be determined by the Depositary;
A-6
(ii) to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter
alia, cash distributions made pursuant to a cancellation or withdrawal, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) to
any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100
ADS held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal; and
(iv) to
any holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) issued upon the exercise of rights.
(v) for
the operation and maintenance costs in administering the ADSs an annual fee of
U.S. $ 2.00 per 100 ADS; provided, however, that if the Depositary imposes a fee
under this clause (v), then the total of fees assessed under this clause (v),
combined with the total of fees assessed under clause (iii) above, shall not
exceed U.S. $ 2.00 per 100 ADS in any calendar year.
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 with the Foreign Registrar 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 , facsimile and electronic 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;
(vi) the
fees and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable; and
(vii) any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time.
A-7
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 written 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 (20) of this Receipt.
(10) 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) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New
York. 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
hereof for all purposes. The Depositary shall have no obligation or
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.
(11) Validity of
Receipt. This Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose, unless
this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer 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 execution and delivery of such Receipt by the Depositary
or did not hold such office on the date of issuance of such
Receipts.
(12) Available Information;
Reports; Inspection of Transfer Books. As of the date of the
Deposit Agreement, the Company publishes information in English required to
maintain the exemption from registration under Rule 12g3-2(b) under the Exchange
Act on its Internet Web site (xxx.xxxxxxx.xxx) or through an electronic
information delivery system generally available to the public in its primary
trading market. Should the Company become subject to the periodic reporting or
other informational requirements under the Securities Exchange Act of 1934, it
will be required in accordance therewith to file reports and other information
with the U.S. Securities and Exchange Commission. The Depositary does
not assume any duty to determine if the Company is complying with the current
requirements of Rule 12g3-2(b) under the Exchange Act or to take any action if
the Company is not complying with those requirements.
A-8
The
Depositary shall make available during normal business hours on any Business Day
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 or the Registrar, as applicable, shall keep books for the
registration of Receipts 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 Depositary’s or 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
Depositary or the Registrar, as applicable, 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 (22) hereof.
|
Dated:
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS, as Depositary |
||
|
|
By:
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||
|
Vice
President
|
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The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, U.S.A..
A-9
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(13) 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 and will distribute
promptly the amount thus received (net of applicable fees and charges of, and
expenses incurred by, the Depositary and taxes and governmental charges
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively 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. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. 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. Any Foreign
Currency received by the Depositary shall be converted upon the terms and
conditions set forth in the Deposit Agreement.
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, 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,
the applicable fees and charges of, and expenses incurred by, the Depositary,
and 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 Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and taxes and governmental charges). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the proceeds upon the terms set forth
in the Deposit Agreement.
A-10
In the
event that (x) 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, (y) if the Company, in the fulfillment
of its obligations under the Deposit Agreement, has either (a) 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), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, 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 taxes and/or governmental charges and fees and 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 Depositary shall, upon provision of all documentation
required under the Deposit Agreement, (including, without limitation, any legal
opinions the Depositary may reasonably request, to be furnished at the expense
of the Company) 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 (14) hereof 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 upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful 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 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-11
Upon
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
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 the Company shall have timely requested that
such rights be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and 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
and establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes and other governmental charges). 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 lawful
or 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 or otherwise, at such place
and upon such terms (including public or 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 and governmental charges) upon the terms
hereof and in 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 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 to the contrary, if registration (under the Securities Act
and/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 (and/or such other
applicable law) covering such offering is in effect or (ii) unless the Company
furnishes to the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactorily 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 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 and 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 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.
A-12
Upon
receipt of a notice regarding 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 timely 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 lawful and 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 such Holders
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 and governmental charges 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 distribute the proceeds of such
sale received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes and governmental charges) 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.
(14) Fixing of Record
Date. Whenever necessary in connection with 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 holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it reasonably necessary in connection with the giving of
any notice, or any other matter, the Depositary shall fix a record date ("ADS
Record Date") as close as practicable to the record date fixed by the Company
with respect to the Shares (if applicable) for the determination of the Holders
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 or for any other reason. Subject to applicable
law and the terms and conditions of this Receipt and the Deposit Agreement, only
the Holders of record 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.
A-13
(15) 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 by the Company in writing in a timely manner, at the Company’s expense
and provided no U.S. legal prohibitions exist, mail by ordinary, regular mail
delivery or by electronic transmission (or as otherwise agreed by the Company
and the Depositary), unless otherwise agreed in writing by the Company and the
Depositary, 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 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 ADSs; and (c) a brief statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given (or be deemed to be given in accordance with the following paragraph of
this section if no instruction is received) to the Depositary to give a
discretionary proxy to a person or persons designated by the Company. 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 Company’s Articles of Association 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 evidenced
by such Receipt in accordance with such voting instructions.
In the
event that the Depositary (a) 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 or (b) if no instructions
are received by the Depositary from a Holder with respect to any of the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs on
or before the ADS Record Date established by the Depositary for such purpose,
the Depositary shall (unless otherwise specified in the notice distributed to
Holders) deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
however, that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing, if applicable) that (x) the
Company does not wish to give such proxy, (y) the Company is aware or should
reasonably be aware that substantial opposition exists from Holders against the
outcome for which the person designated by the Company would otherwise vote or
(z) the outcome for which the person designated by the Company would otherwise
vote would materially and adversely affect the rights of holders of
Shares. 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 for purposes of establishing a quorum or otherwise, the Shares
or other Deposited Securities represented by ADSs, except pursuant to and in
accordance with such written instructions from Holders, including the deemed
instruction to the Depositary to give a discretionary proxy to a person
designated by the Company.
Notwithstanding
the above, save for applicable provisions of Dutch law, and in accordance with
the terms of Section 5.3, the Depositary shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities or the manner
in which such vote is cast or the effect of any such vote.
A-14
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner 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.
(16) Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
subdivision cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of assets affecting the Company or to
which it otherwise is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement 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 ADSs representing the right to receive
such additional securities. Alternatively, 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 of satisfactory 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 Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to this
form of Receipt specifically describing such new Deposited Securities and/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 fees and charges of, and expenses incurred by,
the Depositary and taxes and governmental charges) 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.
A-15
(17) Exoneration. Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or 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 or any state thereof, 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
restraints or by reason of any provision, present or future of the Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control, (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any 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 the Deposit Agreement, made available to Holders of ADS or
(v) for any special, consequential, indirect or punitive damages for any breach
of the terms of the Deposit Agreement or otherwise. 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, opinion 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.
(18) Standard of
Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons (except for the Company’s and the Depositary’s obligations specifically
set forth in Section 5.8 of the Deposit Agreement), provided, that the Company
and the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
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 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. In no event shall the Depositary or any of its agents
(including, without limitation, its Agents) be liable for any indirect, special,
punitive or consequential damages.
A-16
(19) 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, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 60 days after
delivery by the Depositary of written notice of resignation 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 later 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 save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal. 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.
(20) Amendment/Supplement. Subject
to the terms and conditions of this Article (20), and applicable law, 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 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
Receipts until 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 or Shares to be traded solely
in electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
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, to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended and 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.
A-17
(21) 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, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. 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 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 Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts 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 and/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 and/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, Deposited Securities and
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 and/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.
A-18
(22) Compliance with U.S.
Securities Laws; Regulatory Compliance. 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 Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
(23) Certain Rights of the
Depositary; Limitations. Subject to the further terms and
provisions of this Article (23), 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 furnished on behalf of the holder thereof. 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 upon the receipt and
cancellation of ADSs pursuant to Section 2.6 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 (1) 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, (2) 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, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) 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 fifteen percent (15%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above). The
above number of ADSs and Shares involved in such Pre-Release Transactions at any
one time can be revised at the Company’s request, with five (5) business days’
notice. The Depositary will request a written approval from the Company every
time it deems appropriate to disregard such limit, except to the extent that
such limitation is exceeded as a result of the withdrawal of Deposited
Securities subsequent to the execution and delivery of pre-released Receipts in
compliance with such limitation. 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 earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
A-19
(24) Ownership
Restrictions. Holders and Beneficial Owners shall comply
with any limitations on ownership of Shares under the Articles of Association of
the Company or applicable Dutch law as if they held the number of Shares their
American Depositary Shares represent. The Company shall inform
the Holders, Beneficial Owners and the Depositary of any such ownership
restrictions in place from time to time.
Holders
of the Company’s Shares (including in principle holders of ADSs) may be subject
to notification obligations under the FMSA. Shareholders (including in principle
holders of ADSs) are advised to seek professional advice on these
obligations.
Shareholders
Pursuant
to the Financial Markets Supervision Act (Wet op het financieel toezicht) (the
“FSMA”), any person who, directly or indirectly, acquires or disposes of an
interest in the capital or voting rights of the Company must immediately notify
the Authority for the Financial Markets (Stichting Autoriteit Financiële
Markten) (the “AFM”) by means of a standard form, if, as a result of such
acquisition or disposal, the percentage of capital interest or voting rights
held by such person in the Company reaches, exceeds or falls below any of the
following thresholds: 5% (a xxxx is prepared to reduce this to 3%), 10%, 15%,
20%, 25%, 30%, 40%, 50%, 60%, 75% and 95% of the voting rights or capital
interests in the issued capital of the Company.
A
notification requirement also applies if a person’s capital interest or voting
rights reaches, exceeds or falls below the abovementioned thresholds as a result
of a change in the Company’s total share capital or voting rights. Such
notification has to be made no later than the fourth trading day after the AFM
has published the Company’s notification as described below.
The
Company is required to notify the AFM immediately of the changes to its total
share capital or voting rights if its share capital or voting rights changes by
1% or more since the Company’s previous notification. the Company must
furthermore quarterly notify the AFM within eight days after the relevant
quarter, in the event its share capital or voting rights changed by less than 1%
in that relevant quarter since the Company’s previous notification.
Furthermore,
every holder of 5% or more of the Company’s share capital or voting rights whose
interest at 31 December at 12 midnight differs from a previous notification to
the AFM, as a result of certain acts (including but not limited to the exchange
of Company’s Shares for depository receipts and the exercise of a right to
acquire Company’s Shares) must notify the AFM within four weeks.
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Controlled
entities, within the meaning of the FMSA, do not have notification obligations
under the FMSA, as their, direct and indirect, interests are attributed to their
(ultimate) parent. Any person may qualify as a parent for purposes of the FMSA,
including an individual. A person who has a 5% or larger interest in the
Company’s share capital or voting rights and who ceases to be a controlled
entity for these purposes must immediately notify the AFM. As of that moment,
all notification obligations under the FMSA will become applicable to the former
controlled entity.
For the
purpose of calculating the percentage of capital interest or voting rights,
among other metrics, the following interests must be taken into account: (i) the
Company’s Shares or voting rights on the Company’s Shares directly held (or
acquired or disposed of) by a person, (ii) the Company’s Shares or voting rights
on the Company’s Shares held (or acquired or disposed of) by such person’s
subsidiaries or by a third party for such person’s account or by a third party
with whom such person has concluded an oral or written voting agreement
(including a discretionary power of attorney), and (iii) the Company’s Shares or
voting rights on the Company’s Shares which such person, or any subsidiary or
third party referred to above, may acquire pursuant to any option or other right
held by such person (or acquired or disposed of, including, but not limited to,
on the basis of convertible bonds).
Special
rules apply with respect to the attribution of Company’s Shares or voting rights
on the Company’s Shares which are part of the property of a partnership or other
community of property. A holder of a pledge or right of usufruct (vruchtgebruik)
in respect of the Company’s Shares can also be subject to the notification
obligations of the FMSA, if such person has, or can acquire, the right to vote
on the Company’s Shares or, in the case of depository receipts, the underlying
Company’s Shares. The acquisition of (conditional) voting rights by a pledgee or
usufructuary may also trigger the notification obligations as if the pledgee or
beneficial owner were the legal holder of the Company’s Shares or voting rights
on the Company’s Shares.
Non-compliance
with the notification obligations under the FMSA could lead to criminal fines,
administrative fines, imprisonment or other sanctions. In addition,
non-compliance with some of the notification obligations under the FMSA may lead
to civil sanctions, including suspension of the voting rights relating to the
Company’s Shares held by the offender for a period of not more than three years
and a prohibition applicable to the offender to obtain the disposal of the
Company’s Shares or voting rights on the Company’s Shares for a period of not
more than five years.
Public
registry
The AFM
does not issue separate public announcements of these notifications. It does,
however, keep a public register of all notifications under the FMSA on its
website xx.xxx.xx. Third parties can request to be notified automatically by
e-mail of changes to the public register in relation to a particular company’s
shares or a particular notifying party.
(25) Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
A-21
(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.
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Dated:
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Name:
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By:
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Title:
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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.
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SIGNATURE
GUARANTEED
____________________________
A-22
