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DEPOSIT AGREEMENT
by and among
AKTIESELSKABET DAMPSKIBSSELSKABET TORM
as Issuer
AND
BANKERS TRUST COMPANY
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of 27 February 2002
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of 27 February, 2002, by and among (i)
AKTIESELSKABET DAMPSKIBSSELSKABET TORM, a company incorporated under the laws of
Denmark, and its successors (the "Company"), (ii) BANKERS TRUST COMPANY, an
indirect wholly owned subsidiary of Deutsche Bank AG, 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 with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
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 American Depositary Shares to be issued pursuant to the terms
of this Deposit Agreement are to be listed on The National Association of
Securities Dealers Automated Quotation System; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such
term by the Commission under Regulation C promulgated
under the Securities Act.
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SECTION 1.2 "American Depositary Share(s)" and "ADS(s)" American
Depositary Share(s) shall mean with respect to any
American Depositary Receipt, the rights and interests
in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions
of this Deposit Agreement and the American Depositary
Receipts issued hereunder. Each American Depositary
Share shall represent the right to receive 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 4.10 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 1.3 "ADS Record Date" shall have the meaning given to such
term in Section 4.8.
SECTION 1.4 "Balance Certificate" shall have the meaning set forth
in Section 1.25.
SECTION 1.5 "Beneficial Owner" shall mean as to any ADS, any person
or entity having a beneficial interest deriving from
the ownership of such ADS. A Beneficial Owner may or
may not be the Holder of the ADR evidencing such ADSs.
A Beneficial Owner shall be able to exercise any right
or receive any benefit hereunder solely through the
person who is the Holder of the ADR(s) evidencing the
ADSs owned by such Beneficial Owner.
SECTION 1.6 "Business Day" shall mean any day on which the banks in
New York are open for business.
SECTION 1.7 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.8 "Company" shall mean Aktieselskabet Dampskibsselskabet
Torm, a company incorporated and existing under the
laws of Denmark, and its successors.
SECTION 1.9 "Custodian" shall mean, as of the date hereof, Deutsche
Bank, Global Securities Services, having its principal
office at World Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxx XX0
0XX, Scotland, as the custodian for the purposes of
this Deposit Agreement, and any other firm or
corporation which may 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
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shall require. The term "Custodians" 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, or the
electronic delivery of such security by means of
book-entry transfer (including electronic delivery
through institutions that have been designated by the
Danish Securities Center), as appropriate.
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 1.12 "Depositary" shall mean Bankers Trust Company, an
indirect wholly owned subsidiary of Deutsche Bank AG,
in its capacity as depositary under the terms of this
Deposit Agreement, and any successor depositary
hereunder.
SECTION 1.13 "Deposited Securities" shall mean Shares at any time
deposited or deemed to be deposited under this Deposit
Agreement and any and all other securities, property
and cash held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the
provisions of Section 4.7. The collateral delivered in
connection with Pre-Release Transactions described in
Section 5.10 hereof shall not constitute Deposited
Securities.
SECTION 1.14 "Dollars" and "$" shall refer to the lawful currency of
the United States.
SECTION 1.15 "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry
settlement system for securities traded in the United
States and, as such, the custodian for the securities
of DTC Participants maintained in DTC, and any
successor thereto.
SECTION 1.16 "DTC Participant" shall mean any financial institution
(or any nominee of such institution) having one or more
participant accounts with DTC for receiving, holding
and delivering the securities and cash held in DTC.
SECTION 1.17 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "Foreign Currency" shall mean any currency other than
Dollars.
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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.
SECTION 1.20 "Holder" shall mean the person in whose name a Receipt
is registered on the books of the Depositary (or the
Registrar, if any) maintained for such purpose. A
Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs
evidenced by the Receipt registered in its name, such
person shall be deemed to have all requisite authority
to act on behalf of the Beneficial Owners of such ADSs.
SECTION 1.21 "Indemnified Person" and "Indemnifying Person" shall
have the meaning set forth in Section 5.8.
SECTION 1.22 "Kroner" and "Dkk" shall refer to the lawful currency
of Denmark.
SECTION 1.23 "Pre-Release" shall have the meaning set forth in
Section 5.10.
SECTION 1.24 "Principal Office" when used with respect to the
Depositary, shall mean the principal office of the
Depositary at which at any particular time its
depositary receipts business shall be administered,
which, at the date of this Deposit Agreement, is
located at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
SECTION 1.25 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)" shall mean the certificate(s) issued by the
Depositary evidencing the American Depositary Shares
issued under the terms of this Deposit Agreement, as
such Receipts may be amended from time to time in
accordance with the provisions of this Deposit
Agreement. A Receipt may evidence any number of
American Depositary Shares and may, in the case of
American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance
Certificate."
SECTION 1.26 "Registrar" shall mean the Depositary or, with the
approval of the Company, 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 transfers of
Receipts as herein provided, and shall include any
co-registrar appointed by the Depositary, with the
approval of the Company, for such purposes. Registrars
(other than the Depositary) may be removed and
substitutes appointed by the Depositary with the
approval of the Company. Each Registrar (other than the
Depositary) appointed pursuant to this Deposit
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Agreement shall be required to give notice in writing
to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this
Deposit Agreement.
SECTION 1.27 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i)
have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or
chain of transactions not involving any public offering
and subject to resale limitations under the Securities
Act or the rules issued thereunder, or (ii) are held by
an officer or director (or persons performing similar
functions) or other Affiliate of the Company, or (iii)
are subject to other restrictions on sale or deposit
under the laws of the United States, Denmark, or under
a shareholders' agreement or the Company's Articles of
Association or under the regulations of an applicable
securities exchange unless, in each case, such Shares
are being sold to persons other than an Affiliate of
the Company in a transaction (x) covered by an
effective resale registration statement or (y) exempt
from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares are not,
when held by such person, Restricted Securities.
SECTION 1.28 "Securities Act" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.29 "Shares" shall mean ordinary shares in registered form
of the Company, par value Dkk 10 each, heretofore
validly issued and outstanding and fully paid or
hereafter validly issued and outstanding and fully
paid. References 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 4.7, 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.
SECTION 1.30 "United States" or "U.S." shall mean the United States
of America.
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary
The Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby authorizes and directs the Depositary to act in
accordance with the terms set forth in this Deposit Agreement. Each Holder
and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms of this Deposit Agreement,
shall be deemed for all purposes to (a) be a party to and bound by the
terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in this Deposit Agreement, to adopt
any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking
of such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Form. American Depositary Shares shall be evidenced by certificated
Receipts which shall be engraved, printed, lithographed or
produced in such other manner as may be agreed upon by the Company and
the Depositary. The Receipts shall be substantially in the form set
forth in Exhibit A to this Deposit Agreement, with any appropriate
insertions, modifications and omissions. Receipts shall be (i) dated,
(ii) executed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the
manual or facsimile signature of a duly authorized signatory of the
Registrar, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed and (iv) registered in the books maintained
by the Depositary or, if a Registrar (other than the Depositary) for
the Receipts shall have been appointed, the Registrar for the issuance
and transfer of Receipts. No Receipt and no American Depositary Share
evidenced thereby shall be entitled to any benefits under this Deposit
Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such Receipt shall have been so
dated, signed, countersigned and registered. 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. The Receipts shall bear a
CUSIP number that is different from any CUSIP number that was, is or
may be assigned to any depositary receipts previously or subsequently
issued pursuant to any other arrangement between
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the Depositary (or any other depositary) and the Company which are not
Receipts issued hereunder.
(b) Legends. The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as (i) may be necessary to
enable the Depositary to perform its obligations hereunder, (ii) may
be required to comply with any applicable law or regulations, or with
the rules and regulations of any securities exchange or market upon
which American Depositary Shares or the Shares may be traded, listed
or quoted or to conform with any usage with respect thereto, (iii) may
be necessary to indicate any special limitations or restrictions to
which any particular Receipts or American Depositary Shares are
subject by reason of the date of issuance of the Deposited Securities,
or (iv) may be required by any book-entry system in which the ADSs are
held.
(c) Title. Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to each American Depositary Share
evidenced thereby), shall be transferable by delivery of the Receipt,
provided that the Receipt 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. However,
notwithstanding any notice to the contrary, the Depositary may deem
and treat the Holder of a Receipt (that is, the person in whose name a
Receipt is registered on the books of the Depositary) as the absolute
owner thereof for all purposes, and the Depositary shall have no
obligation or be subject to any liability under this Deposit Agreement
to any holder of a Receipt or any Beneficial Owner unless such holder
is the registered Holder of such Receipt on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial
Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the American Depositary Shares into DTC. A single ADR in
the form of a "Balance Certificate" will evidence all ADSs held
through DTC and will be registered in the name of the nominee for DTC
(currently "Cede & Co."). As such, the nominee for DTC will be the
only "Holder" of the ADR evidencing all ADSs held through DTC. Each
Beneficial Owner of ADSs held through DTC must rely upon the
procedures of DTC and the DTC Participants to exercise or be entitled
to any rights attributable to such ADSs. The DTC Participants shall
for all purposes be deemed to have all requisite power and authority
to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC, and the Depositary shall for
all purposes be authorized to rely upon any instructions and
information given to it by DTC Participants on behalf of Beneficial
Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the
ADR registered in the name of the nominee for DTC will be shown on,
and transfers of such ownership will
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be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
SECTION 2.3 Deposit with Custodian
Subject to the terms and conditions of this Deposit Agreement and
applicable law, Shares or evidence of rights to receive Shares (other than
Restricted Securities) may be deposited by any person (including the
Depositary in its individual capacity but subject, however, in the case of
the Company or any Affiliate of the Company, to Section 5.7 hereof) at any
time, whether or not the transfer books of the Company or the Foreign
Registrar, if any, are closed, by Delivery of the Shares to the Custodian
(such Delivery, if through electronic transfer of shares through Danish
Securities Center or any successor thereto, to the account of the Custodian
maintained for such purpose). 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 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 satisfactory to the Depositary (which may
include an opinion of counsel reasonably satisfactory to the Depositary)
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 Denmark,
and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides
for the prompt transfer by any person in whose name the Shares are or have
been recorded to the Custodian of any distribution, or right to subscribe
for additional Shares or to receive other property in respect of any such
deposited Shares or, in lieu thereof, such indemnity or other agreement as
shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to
exercise voting rights in respect of the Shares for any and all purposes
until the Shares so deposited are registered in the name of the Depositary,
the Custodian or any nominee. Without limiting any other provision of this
Deposit Agreement, the Depositary shall instruct the Custodian not to, and
the Depositary shall not knowingly, accept for deposit (a) any Restricted
Securities or (b) any fractional Shares or fractional Deposited Securities
or (c) a number of Shares or Deposited Securities which upon application of
the ADS to Shares ratio would give rise to fractional ADSs. No Share shall
be accepted for deposit unless accompanied by 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
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deposit have been satisfied by the person depositing such Shares under the
laws and regulations of Denmark and any necessary approval has been granted
by any governmental body in Denmark, if any, which is then performing the
function of the regulator of currency exchange. 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. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of Shares furnished on behalf
of the holder thereof.
SECTION 2.4 Registration of Shares
The Depositary shall instruct the Custodian upon each delivery of
certificates representing registered Shares being deposited hereunder with
the Custodian (or other Deposited Securities pursuant to Article IV
hereof), together with the other documents above specified, to present such
certificate or certificates, together with the appropriate instrument or
instruments of transfer or endorsement, duly stamped, to the Foreign
Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for
whom the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or
by a Custodian for the account and to the order of the Depositary or a
nominee, in each case for the account of the Holders and Beneficial Owners,
at such place or places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act, unless a registration statement is in effect as to such
Shares or other Deposited Securities, or any Shares or Deposited Securities
the deposit of which would violate any provisions of the Company's Articles
of Association.
SECTION 2.5 Execution and Delivery of Receipts
The Depositary has made arrangements with the Custodian to confirm to the
Depositary (i) that a deposit of Shares has been made pursuant to Section
2.3, (ii) that any such Deposited Securities have been recorded in the name
of the Depositary, the Custodian or a nominee of either on the
shareholders' register maintained by or on behalf of the Company (held by
the Danish Securities Center or an appointed agent) if registered Shares
have been deposited or if deposit is made by book-entry transfer,
confirmation of such transfer in the books of the Foreign Registrar (held
by the Danish Securities Center or an appointed agent), (iii) that all
required documents have been received, and (iv) the person or persons to
whom or upon whose written order American Depositary Shares are deliverable
in respect thereof and the number of American Depositary Shares to be
evidenced thereby. Such notification may be made by letter, cable, telex,
swift message or, at the risk and expense of the person making the deposit,
by facsimile or other means of electronic transmission. Upon receiving such
notice from the Custodian, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall issue the
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American Depositary Shares representing the Shares so deposited to or upon
the order of the person(s) named in the notice delivered to the Depositary
and shall execute and deliver a Receipt or Receipts, registered in the name
or names requested by such person(s) and evidencing the aggregate number of
American Depositary Shares to which such person(s) are entitled, but only
upon payment to the Depositary of the charges of the Depositary for
accepting a deposit, issuing American Depositary Shares and executing and
delivering such Receipt or Receipts (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable
in connection with such deposit and the transfer of the Shares and the
issuance of the Receipt or Receipts. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
SECTION 2.6 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 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 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
and Exhibit B, the Depositary shall execute, and if the Depositary's
signature is by facsimile, the Registrar, if a Registrar (other than
the Depositary) for the Receipts shall have been appointed, shall
manually countersign, 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
and Exhibit B, 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.
(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
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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 2.6
(other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
SECTION 2.7 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 and Exhibit B) and
(ii) all applicable taxes and 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 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. Delivery of such Deposited Securities may be made by
registering such Deposited Securities in the name of such Holder or as
ordered by him through an account with an institution designated by the
Danish Securities Center or Delivery by other means approved by the
Company. 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 through registering such Deposited Securities in
the name of such Holder or as ordered by him through an account with an
institution designated by the Danish Securities Center, or Delivery by
other means approved by the Issuer. Thereupon, the Depositary shall direct
the Custodian to Deliver (without unreasonable delay) at the designated
office of the Custodian (subject to Sections 2.8, 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, or evidence of the electronic transfer thereof, as
the case may be, to or for the account of such person. Notwithstanding the
previous provisions of this paragraph, the Depositary may make delivery to
such person or persons at the Principal Office of the Depositary of any
dividends or cash distributions with respect to the Deposited Securities
represented
12
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.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. The Depositary may, in
its discretion, refuse to 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
withheld) 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.
SECTION 2.8 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,
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 and Exhibit B, (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 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 of Deposited Securities and (B) such reasonable
regulations as the Depositary and the Company may establish consistent
with the provisions of this Deposit Agreement and applicable law.
13
(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 (or the appointed agent of the
Company for registration of Shares or the Danish Securities Center)
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.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or any 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).
SECTION 2.9 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost, or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor at the
expense of the Holder (a) in the case of a mutilated Receipt, in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or
(b) in lieu of and in substitution for such destroyed, lost, or stolen
Receipt, after the Holder thereof (i) has submitted to the Depositary a
written request for such exchange and substitution before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser,
(ii) has provided such security or indemnity (including an indemnity bond)
as may be required by the Depositary to save it and any of its agents
harmless and (iii) has satisfied any other reasonable requirements imposed
by the Depositary, including, without limitation, evidence satisfactory to
the Depositary of such destruction, loss or theft of such Receipt, the
authenticity thereof and the Holder's ownership thereof.
SECTION 2.10 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,
provided the Depositary
14
maintains a record of all destroyed Receipts. Cancelled Reciepts shall not
be entitled to any benefits under this Deposit Agreement or be xxxx or
obligatory for any purpose.
SECTION 2.11 Partial Entitlement ADSs
In the event any Shares are deposited which entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit (the Shares then on deposit
collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause
the Custodian to hold Partial Entitlement Shares separate and distinct from
Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which
are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement
ADSs/ADRs", respectively). If and when Partial Entitlement Shares become
Full Entitlement Shares, the Depositary shall (a) give notice thereof to
Holders of Partial Entitlement ADSs and give Holders of Partial Entitlement
ADRs the opportunity to exchange such Partial Entitlement ADRs for Full
Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c)
take such actions as are necessary to remove the distinctions between (i)
the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of
Partial Entitlement ADSs shall only be entitled to the entitlement of
Partial Entitlement Shares. Holders and Beneficial Owners of Full
Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Agreement shall
apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be
necessary (including, without limitation, making the necessary notations on
Receipts) to give effect to the terms of this Section 2.11. The Company
agrees to give timely written notice to the Depositary if any Shares issued
or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification
of Partial Entitlement Shares upon Delivery to the Custodian.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information
Any person presenting Shares for deposit, any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from
time to time to provide to the Depositary 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 this Deposit Agreement and the provisions of, or
governing, the
15
Deposited Securities or other information; to execute such certifications
and to make such representations and warranties, and to provide such other
information and documentation (or in the case of Shares in registered form
presented for deposit, such information relating to the registration on the
books of the Company or the Danish Securities Center or the appointed agent
of the Company for the registration and transfer of Shares) as the
Depositary may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof, or to the extent not limited by the
terms of Section 7.8 hereof, the delivery of any Deposited Securities,
until such proof or other information is filed or such certifications are
executed, or such representations and warranties are made, or such other
documentation or information provided, in each case to the Depositary's,
the Registrar's and the Company's satisfaction. The Depositary shall
provide the Company, in a timely manner, with copies or originals if
necessary and appropriate of (i) any such proofs of citizenship or
residence, taxpayer status, or exchange control approval which it receives
from Holders and Beneficial Owners and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation and withdrawal.
Nothing herein shall obligate the Depositary to (i) obtain any information
for the Company if not provided by the Holders or Beneficial Owners or (ii)
verify or vouch for the accuracy of the information so provided by the
Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges
If any tax or other governmental charge shall become payable by the
Depositary or the Custodian with respect to any ADR or any Deposited
Securities or American Depositary Shares, such tax or other governmental
charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold
or deduct from any distributions made in respect of Deposited Securities
and may sell for the account of 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. 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.
16
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.
SECTION 3.4 Compliance with Information Requests
Notwithstanding any other provision of this Deposit Agreement, each Holder
and Beneficial Owner agrees to comply with requests from the Company
pursuant to applicable law, the rules and requirements of The National
Association of Securities Dealers Automated Quotation System and any other
stock exchange on which the Shares are, or will be, registered, traded or
listed or the Company's Articles of Association, which are made to provide
information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns American Depositary Shares (and Shares as the case
may be) and regarding the identity of any other person interested in such
American Depositary Shares and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at
the time of such request. The Depositary agrees to use its reasonable
efforts to forward upon the request of the Company, and at the Company's
expense, any such request from the Company to the Holders and to forward to
the Company any such responses to such requests received by the Depositary.
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 4.7) 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
17
(on the terms described in Section 4.7) 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 withheld) 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, and
any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of
the next sum received by the Depositary for distribution to Holders of
Receipts outstanding at the time of the next distribution. If the Company,
the Custodian or the Depositary is required to withhold and does withhold
from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other
governmental charges, the amount distributed to Holders on the 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.
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 4.8
and shall, subject to Section 5.9, 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) 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). 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. In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligation under Section 5.7, has furnished an opinion
of U.S. counsel (reasonably acceptable to the Depositary) determining that
Receipts must be registered under the Securities Act or other laws in order
to be distributed to Holders (and no such registration statement has been
declared effective), the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including
18
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 (b) fees and charges
of, and expenses incurred by, the Depositary) to Holders entitled thereto
upon the terms described in Section 4.1. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the
provisions of this Deposit Agreement.
SECTION 4.3 Elective Distributions in Cash or Shares
Whenever the Company intends to 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 at least 30 days 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. 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 4.8) 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. 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 at least 60 days 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
19
determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the
Depositary shall have received satisfactory documentation within the
terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is 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. In the event all conditions set
forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.8) 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). The Company shall assist the
Depositary to the extent necessary in establishing such procedures.
Nothing herein shall obligate the Depositary to make available to the
Holders a method to exercise such rights to subscribe for Shares
(rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that
the rights not be made available to Holders, (ii) the Depositary fails
to receive satisfactory documentation within the terms of Section 5.7
or determines it is not 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) 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 or any other applicable law) of the
rights or the securities to which any
20
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
covering such offering is in effect or (ii) unless the Company furnishes
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 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 or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or 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 at least 30 days 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 consult with the Company, and the Company shall
assist the Depositary, to determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not
make such distribution unless (i) the Company shall have 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 shall
distribute the
21
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 withheld. The Depositary may
dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or
private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 5.7, or (iii) the Depositary
determines that all or a portion of such distribution is not
reasonably practicable or feasible, 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 net proceeds of such sale received by the Depositary (net of
applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) to the Holders as of the ADS Record Date
upon the terms of Section 4.1. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way
it deems reasonably practicable under the circumstances.
SECTION 4.6 Distributions with Respect to Deposited Securities in Bearer
Form
Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall
be made to the Depositary for the account of the respective Holders of
Receipts with respect to which any such distribution is made upon due
presentation by the Depositary or the Custodian to the Company of any
relevant coupons, talons, or certificates. The Company shall promptly
notify the Depositary of such distributions. The Depositary or the
Custodian shall promptly present such coupons, talons or certificates, as
the case may be, in connection with any such distribution.
SECTION 4.7 Conversion of Foreign Currency
Whenever the Depositary or the Custodian shall receive Foreign Currency, by
way of dividends or other distributions or the net proceeds from the sale
of securities, property or rights, and in the judgment of the Depositary
such Foreign Currency can at such time be converted on a practicable basis
(by sale or in any other manner that it may determine in accordance with
applicable law) into Dollars transferable to the United States and
distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may
determine, such Foreign Currency into Dollars, and shall distribute such
Dollars (net of any applicable fees, any reasonable and customary expenses
incurred in such conversion and any expenses incurred on behalf of the
Holders in complying with currency exchange control or other governmental
22
requirements) in accordance with the terms of the applicable sections of
this Deposit Agreement. If the Depositary shall have distributed warrants
or other instruments that entitle the holders thereof to such Dollars, the
Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon
an averaged or other practicable basis without regard to any distinctions
among Holders on account of any application of exchange controls or
otherwise.
If such conversion or distribution generally or with regard to a particular
Holder can be effected only with the approval or license of any government
or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. The
Depositary shall make such a filing to the extent that the Depositary in
its sole discretion shall determine that such filing may be made at a
reasonable cost and is otherwise practicable. In no event, however, shall
the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its 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 in the opinion of the Depositary, not obtainable
at a reasonable cost or within a reasonable period, the Depositary shall,
in its sole discretion but subject to applicable laws and regulations, take
one or more of the following actions: (i) make such conversion and
distribution in Dollars to the Holders for whom such conversion, transfer
and distribution is lawful and practicable; (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom such distribution is lawful and
practicable; or (iii) hold (or cause the Custodian to hold) such Foreign
Currency (without liability for interest thereon) for the respective
accounts of the Holders entitled to receive the same.
SECTION 4.8 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 necessary or
convenient in connection with the giving of any notice, solicitation of any
consent or any other matter, the Depositary shall fix a record date (the
"ADS Record Date") 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. The
Depositary shall make reasonable efforts to establish the ADS Record Date
as closely as possible to the record date applicable to the Deposited
Securities (if any). Subject to applicable law and the provisions of
Section 4.1 through 4.8 and to the other terms and conditions of this
Deposit Agreement, only the
23
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 4.9 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 consent or proxy. The Depositary shall, if requested by the
Company in writing at least 20 days prior to the date of such vote or
meeting, and at the Company's expense and provided no U.S. legal
prohibitions exist, mail by regular, ordinary mail delivery to the
Registered Holders of Receipts as of the ADS Record Date a notice, the form
of which notice shall be in the sole discretion of the Depositary, which
shall contain: (a) such information as is contained in such notice of
meeting; (b) a statement that such Registered Holders of Receipts at the
close of business on the ADS Record Date will be entitled, subject to any
applicable provision of Danish law, of the Deposited Securities or of the
Articles of Association of the Company, to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the amount of
Shares or other Deposited Securities represented by their 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 to the Depositary to give a discretionary proxy
to a person designated by the Company and that holders of proxies are
authorized to vote on such other business as may properly come before the
meeting.
Upon the written request of a Registered Holder of a Receipt on the ADS
Record Date, received on or before the ADS Record Date, 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 to be voted 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.
With respect to Shares for which voting instructions are not received on or
before the date established by the Depositary, the Depositary shall,
subject to receipt of an opinion provided at the expense of the Company to
the effect that the voting arrangement is valid and binding on Holders
under Danish law and that the Depositary will not be exercising voting
discretion, either vote as directed by the Board of Directors of the
Company or give a discretionary proxy or power of attorney to vote the
deposited shares in favor of another person designated by the Board of
Directors of the Company.
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 American Depositary Shares
except pursuant to and in accordance with such written instructions from
Holders or as provided above.
24
Holders will have the right to attend shareholder meetings in accordance
with the rules established by the Company but will only have those voting
rights with respect to the Shares as are set out in this Section 4.9.
SECTION 4.10 Changes Affecting Deposited Securities
Upon any change in par value, split-up, cancellation, consolidation or any
other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is 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 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 the Company's counsel 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) 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.
SECTION 4.11 Available Information
The Company is subject to the periodic reporting requirements of the
Exchange Act and accordingly files certain information with the Commission.
These reports and documents can be inspected and copied at the public
reference facilities maintained by the Commission located at Judiciary
Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000
25
and at the Commission's New York City office located at Seven World Trade
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 4.12 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 Depositary shall also mail by regular,
ordinary mail delivery to Holders copies of such reports when furnished by
the Company pursuant to Section 5.6.
SECTION 4.13 List of Holders
Promptly upon written request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders,
as such information is reflected in the Depositary's records.
SECTION 4.14 Taxation
The Depositary will, and will instruct the Custodian to, forward to the
Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agents to file 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. In accordance with instructions from the Company and to the extent
practicable, the Depositary or the Custodian will take commercially
reasonable administrative actions to obtain tax refunds, reduced
withholding of taxes at source on dividends and other benefits under
applicable tax treaties or laws with respect to dividends and other
distributions on the Deposited Securities. 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.
26
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax
in respect of such distribution (i.e. stamp duty tax, capital gains or
other similar tax), the Company shall (and shall cause such agent to) remit
promptly to the Depositary information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other
proof of payment to the applicable governmental authority) therefor, in
each case, in a form 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 nor the Custodian shall
be liable for the failure by any Holder or Beneficial Owner to obtain the
benefits of credits on the basis of non-U.S. tax paid against such Holder's
or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may
be incurred by Holders and Beneficial Owners on account of their ownership
of the American Depositary Shares, including without limitation, tax
consequences resulting from the Company (or any of its subsidiaries) being
treated as a "Foreign Personal Holding Company," or as a "Passive Foreign
Investment Company" (in each case as defined in the U.S. Internal Revenue
Code, as amended, and the regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary or if a Registrar for the Receipts shall have been
appointed, the Registrar shall maintain in the Borough of Manhattan, the
City of New York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of
Receipts, the surrender of Receipts and the delivery and withdrawal of
Deposited Securities in accordance with the provisions of this Deposit
Agreement.
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.
27
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 Section 7.8.
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.
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 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, Denmark 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 consequential or punitive damages
for any breach of the terms of this Deposit Agreement.
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.
28
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care
The Company and the Depositary 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 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 negligence or bad
faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall
be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or in respect of
the 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 or the effects of any vote, provided that
any such action or omission is in good faith and in accordance with the
terms of this Deposit Agreement. The Depositary shall not incur any
liability for any failure to determine that any distribution or action may
be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated
with acquiring an interest in the Deposited Securities, for the validity or
worth of the Deposited Securities or for any tax consequences that may
result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon
the terms of this Deposit Agreement or for the failure or timeliness of any
notice from the Company. 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 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 30th day after delivery thereof to the
Company (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2), or (ii) upon the appointment by
29
the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Company shall use reasonable efforts to appoint such successor
depositary, and give notice to the Depositary of such appointment, not more
than 90 days after delivery by the Depositary of written notice of
resignation as provided in this paragraph. In the event that 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.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the
30th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof),
or (ii) upon the appointment by the Company of a successor depositary and
its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary
shall be required by the Company to execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment
hereunder, and thereupon such successor depositary, without any further act
or deed (except as required by applicable law), shall become fully vested
with all the rights, powers, duties and obligations of its predecessor. 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 Depositary has initially appointed Deutsche Bank, Global Securities
Services as Custodian for the purpose of this Deposit Agreement. The
Custodian or its successors in acting hereunder shall be subject at all
times and in all respects to the direction of the Depositary for the
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
30
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 custodian with respect
to any Deposited Securities, or discharge the Custodian with respect to any
Deposited Securities and appoint a substitute custodian, which shall
thereafter be Custodian hereunder with respect to the Deposited Securities.
Immediately upon any such change, the Depositary shall give notice thereof
in writing to all Holders of Receipts, each other Custodian and the
Company.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to
be the Custodian of the Deposited Securities without any further act or
writing and shall be subject to the direction of the successor depositary.
The successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete
power and authority to act on the direction of such successor depositary.
SECTION 5.6 Notices and Reports
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of
the taking of any action by such holders other than at a meeting, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company
shall transmit to the Depositary and the Custodian a copy of the notice
thereof in 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. 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 make such notices, reports and other
communications available to all Holders on a basis similar to that for
holders of Shares or other Deposited Securities or on such other basis as
the Company may advise the Depositary or as may be required by any
applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the Company's
Articles of Association along with the provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any
Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to
31
the Depositary and the Custodian a copy of such amendment thereto or change
therein. The Depositary may rely upon such copy for all purposes of this
Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the 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 or consolidation or
transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions
of the Securities Act, 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, the Company will furnish to the Depositary (a) a written
opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating
whether or not application of such transaction to Holders and Beneficial
Owners (1) requires a registration statement under the Securities Act to be
in effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of Danish 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 Denmark and (2) all requisite regulatory consents and
approvals have been obtained in Denmark. If the filing of a registration
statement is required, the Depositary shall not have any obligation to
proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines
that a transaction is required to be registered under the Securities Act,
the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the
registration requirements of the Securities Act.
The Company agrees with the Depositary that 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
32
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 any of
their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability,
tax, charge or expense of any kind whatsoever (including, but not limited
to, the reasonable fees and expenses of counsel) that may arise (a) out of
or in connection with any offer, issuance, sale, resale, transfer, deposit
or withdrawal of 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
such loss, liability, tax, charge or expense is due to the negligence or
bad faith of any of them, or (ii) by the Company or any of its directors,
officers, employees, agents and Affiliates.
The Depositary agrees to indemnify the Company and its directors, officers,
employees, agents and Affiliates against, and hold each of them harmless
from, any direct loss, liability, tax, charge or expense of any kind
whatsoever (including, but not limited to, the reasonable fees and expenses
of counsel) which may arise out of acts or in connection with, performed or
omitted by the Depositary under the terms hereof due to the negligence or
bad faith of the Depositary.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or
claim promptly after such Indemnified Person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such Indemnified Person's rights to indemnification except to the
extent the Indemnifying Person is materially prejudiced by such failure)
and shall consult in good faith with the Indemnifying Person as to the
conduct of the defense of such action or claim that may give rise to an
indemnity hereunder, which defense shall be reasonable under the
circumstances. No Indemnified Person shall compromise or settle any action
or claim that may give rise to an indemnity hereunder without the consent
of the Indemnifying Person, which consent shall not be unreasonably
withheld.
33
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party
hereto.
SECTION 5.9 Fees and Charges of Depositary
The Company, the Holders, the Beneficial Owners, and persons depositing
Shares or surrendering ADSs for cancellation and withdrawal of Deposited
Securities shall be required to pay to the Depositary the Depositary's fees
and related charges identified as payable by them respectively in the Fee
Schedule attached hereto as Exhibit B. All fees and charges so payable may,
at any time and from time to time, be changed by agreement between the
Depositary and the Company, but, in the case of fees and charges payable by
Holders and Beneficial Owners, only in the manner contemplated in Section
6.1. The Depositary shall provide, without charge, a copy of its latest fee
schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as
the Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to
time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such
expenses and fees or charges to the Company once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Pre-Release
Subject to the further terms and provisions of this Section 5.10, the
Depositary, its Affiliates and their agents, on their own behalf, may own
and deal in any class of securities of the Company and its Affiliates and
in ADSs. In its capacity as Depositary, the Depositary shall not lend
Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares (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
34
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 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 30% of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided,
however, that the Depositary reserves the right to disregard such limit
from time to time for cancellations and other circumstances beyond its
control. The Depositary may also set limits with respect to the number of
ADSs and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b)
above, but not the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
SECTION 5.11 Restricted Securities Owners
The Company agrees to advise in writing each of the persons or entities
who, to the knowledge of the Company, holds Restricted Securities that such
Restricted Securities are ineligible for deposit hereunder and, to the
extent practicable, shall require each of such persons to represent in
writing that such person will not deposit Restricted Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement
Subject to the terms and conditions of this Section 6.1 and applicable law,
the 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
35
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 therefore 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.
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 90 days prior to the
date fixed in such notice for such termination. If 90 days shall have
expired after (i) the Depositary shall have delivered to the Company a
written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 90
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 2.7 and subject to the conditions and restrictions therein set
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such 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 2.7,
together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property,
in exchange for Receipts surrendered to the Depositary (after deducting, or
36
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 or governmental charges or assessments). At any time
after the expiration of one year 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 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 under Sections 5.8, 5.9 and 7.6 hereof.
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.
37
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.
SECTION 7.5 Notices
Any and all notices to be given to the Company shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to
Aktieselskabet Dampskibsselskabet Torm, Xxxxxx Xxxx, 00 Xxxxxxxxxxxxx,
XX-0000 Xxxxxxxxxx 0, Xxxxxxx, Attention: Jens Xxxx Xxxx, or to any other
address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX,
Attention: ADR Department, telephone: (000) 000 000 0000, facsimile: (001)
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 the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Deutsche Bank, Global Securites Services, World Xxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxx XX0 0XX, Scotland or to any other address which the Custodian 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 or
facsimile transmission, confirmed by letter, addressed to such Holder at
the address of such Holder as it appears on the transfer books for Receipts
of the Depositary, or, if such Holder shall have filed with the Depositary
a written request that notices intended for such Holder be mailed to some
other address, at the address 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 or facsimile
transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case
of a cable, telex or facsimile transmission) is deposited, postage prepaid,
in a post-office letter box or delivered to an air courier
38
service. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it from the other or from any
Holder, notwithstanding that such cable, telex or facsimile transmission
shall not subsequently be confirmed by letter as aforesaid.
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
reference to the principles of choice of law thereof. Except as set forth
in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York
shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or
in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers CT Corporation
System (the "Agent") now at 0000 Xxxxxxxx, Xxx Xxxx, XX 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.
39
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment
Subject to the provisions of Section 5.4 hereof, this Deposit Agreement may
not be assigned by either the Company or the Depositary.
SECTION 7.8 Compliance with U.S. Securities Laws
Notwithstanding anything in this Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction
I.A.(1) of the General Instructions to Form F-6 Registration Statement, as
amended from time to time, under the Securities Act.
SECTION 7.9 Titles
All references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles,
sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import
refer to the Deposit Agreement as a whole as in effect between the Company,
the Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender,
and words in the singular form shall be construed to include the plural and
vice versa unless the context otherwise requires. Titles to sections of
this Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in this Deposit Agreement.
40
IN WITNESS WHEREOF, AKTIESELSKABET DAMPSKIBSSELSKABET TORM and BANKERS
TRUST COMPANY 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.
AKTIESELSKABET DAMPSKIBSSELSKABET TORM
By: /s/ XXXXX XXXXXXXXX
--------------------
Name: Klaus Kjaelruff
Title: President CEO
BANKERS TRUST COMPANY
By: /s/ XXXX XXXXXX
---------------
Name: Xxxx Xxxxxx
Title: Director
By: /s/ XXXX XXXXXX
---------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
41
Number CUSIP
American Depositary
Shares (Each American
Depositary Share
representing
one
Fully Paid
Common Share
each Dkk 10)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED COMMON SHARES
of
AKTIESELSKABET DAMPSKIBSSELSKABET TORM
(Incorporated under the laws of Denmark)
BANKERS TRUST COMPANY, as depositary (herein called the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADS"), representing deposited common shares,
each of Par Value of Dkk 10 including evidence of rights to receive such common
shares (the "Shares") of AKTIESELSKABET DAMPSKIBSSELSKABET TORM (the "Company"),
a company incorporated under the laws of Denmark (the "Company"). As of the date
of the Deposit Agreement (hereinafter referred to), each ADS represents one
Share deposited under the Deposit Agreement with the Custodian which at the date
of execution of the Deposit Agreement is Deutsche Bank, Global Securities
Services (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 0 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
(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 27 February, 2002 (as
42
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).
(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 charges of the Depositary
for the making of withdrawals and cancellation of Receipts (as set forth in
Article (9) hereof and in Section 5.9 and Exhibit B of the Deposit
Agreement) and (ii) all fees, taxes and governmental charges payable in
connection with such surrender and withdrawal, and, subject to the terms
and conditions of the Deposit
43
Agreement, the Company's Articles of Association, Section 7.8 of the
Deposit Agreement, Article (23) 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. Delivery of such Deposited Securities may be made by
registering such Deposited Securities in the name of such Holder or as
ordered by him through an account with an institution designated by the
Danish Securities Center or Delivery by other means approved by the
Company. 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 registered 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 through registering such Deposited Securities in
the name of such Holder or as ordered by him through an account with an
institution designated by the Danish Securities Center, or Delivery by
other means approved by the Issuer. 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), 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 may make delivery to such person or persons at the Principal
Office of the Depositary of any dividends or distributions with respect to
the Deposited Securities represented by such Receipt, or of any proceeds of
sale of any dividends, distributions or rights, which may at the time be
held by the Depositary.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other
than a whole number of Shares. In the case of surrender of a Receipt
evidencing a number of ADSs representing other than a whole number of
Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) 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 so
surrendered and remit the proceeds thereof (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the Receipt. At the request, risk and
expense of any Holder so surrendering a Receipt, and for the account of
such Holder, the Depositary
44
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
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the terms and
conditions of the Deposit Agreement, 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 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, of Denmark and of
any other applicable jurisdicition. 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 and deliver a new
Receipt(s) (and if necessary, cause the Registrar to countersign such
Receipt(s)) 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, combination
or surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of
Shares or presenter of 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 satisfactory to
it as to the identity and genuineness of any signature or any other matters
and (iii) compliance with (A) any laws or governmental regulations relating
to the execution and delivery of Receipts and ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations of the Depositary
or the Company consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the 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 (or
the appointed agent to the Company for registration of shares or the Danish
Securities Center) are closed or if any such action is deemed necessary or
advisable by the Depositary or the
45
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or
any securities exchange upon which the Receipts or Share are listed, or
under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (23)
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 limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
U.S. Securities Act of 1933, as amended, unless a registration statement is
in effect as to such Shares.
(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 Denmark, the rules and requirements of The
National Association of Securities Dealers Automated Quotation System. and
any other 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 Receipt or any Deposited Securities or ADSs,
such tax, or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or 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. The
Custodian may refuse the deposit of Shares, and the Depositary may refuse
to issue ADSs, to deliver Receipts, register the transfer, split-up or
combination of ADRs and (subject to Article (23) 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, directors,
46
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.
(7) Representations and Warranties of Depositors. Each person depositing Shares
under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, fully paid, non-assessable and 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
such other information (or in the case of shares in registered form,
presented for deposit, such information relating to the registration on the
books of the Company or the Danish Securities Center or the appointed agent
of the Company for the registration and transfer of shares) 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 (23) hereof and
the terms of the Deposit Agreement, the Depositary and the Registrar, as
applicable, may withhold the delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or other distribution
of rights or of the proceeds thereof or the delivery of any Deposited
Securities until such proof or other information is filed, or such
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:
(i) to any person to whom ADSs are issued upon the deposit of Shares, 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 (excluding issuances
pursuant to paragraph (iii) and (v) below);
47
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or fraction thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 0.02 per 100
ADSs (or fraction thereof) held for the distribution of cash proceeds
(i.e. upon the sale of rights and other entitlements);
(iv) no fee shall be payable for the distribution of cash dividends or the
distribution of ADSs pursuant to stock dividends or other free
distributions of shares as long as such fees are prohibited by the
exchange upon which the ADSs are listed. If charging of such fees is
not prohibited, the fees specified in (i) above shall be payable in
respect of ADS distributions pursuant to stock dividends (or other
free distributions of stock) and the fees specified in (iii) above
shall be payable in respect of distributions of cash;
(v) to any holder of ADRs, a fee not in the excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities 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 and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense
of the person depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
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
48
fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (21) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request.
The charges and expenses of the Custodian are for the sole account of the
Depositary.
(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 hereof (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. The Company
is subject to the periodic reporting requirements of the Exchange Act and
accordingly files certain information with the Commission. These reports
and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000 and at the Commission's New York
City office located at Seven World Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000. 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.
49
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 (23) hereof.
Dated: BANKERS TRUST COMPANY, as Depositary
Countersigned
By:_______________________ By:
----------------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 0 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
50
[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 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, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by
the Depositary for distribution to Holders of Receipts then outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend
or other cash distribution in respect of any Deposited Securities an amount
on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities
shall be reduced accordingly. Such withheld amounts shall be forwarded by
the Company, the Custodian or the Depositary to the relevant governmental
authority. 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 interest 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). In lieu of delivering fractional ADSs, the
Depositary shall
51
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.
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 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 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 (15) 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 Denmark 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.
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 Depositary, upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights
available to any Holders only if 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
52
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). 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 and private sale) as it may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and 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 feasible to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or exercise, or (iii) the
content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything herein to the contrary, if registration (under the
Securities Act or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to
offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights
to the Holders (i) unless and until a registration statement under the
Securities Act 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 or charges.
53
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.
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 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) 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 necessary or
convenient in connection with the giving of any notice, or any other
matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders 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. 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
54
receive such distributions, to give such voting instructions, to receive
such notice or solicitation, or otherwise take action.
(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 consent or proxy. The Depositary
shall, if requested by the Company in writing at least 20 days prior to the
date of such vote or meeting, and at the Company's expense and provided no
U.S. legal prohibitions exist, mail by regular, ordinary mail delivery to
the Registered Holders of Receipts as of the ADS Record Date a notice, the
form of which notice shall be in the sole discretion of the Depositary,
which shall contain: (a) such information as is contained in such notice of
meeting; (b) a statement that such Registered Holders of Receipts at the
close of business on the ADS Record Date will be entitled, subject to any
applicable provision of Danish law, of the Deposited Securities or of the
Articles of Association of the Company, to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the amount of
Shares or other Deposited Securities represented by their 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 to the Depositary to give a discretionary proxy
to a person designated by the Company and that holders of proxies are
authorized to vote on such other business as may properly come before the
meeting.
Upon the written request of a Registered Holder of a Receipt on the ADS
Record Date, received on or before the ADS Record Date, 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 to be voted 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.
With respect to Shares for which voting instructions are not received on or
before the date established by the Depositary, the Depositary shall,
subject to receipt of an opinion provided at the expense of the Company to
the effect that the voting arrangement is valid and binding on Holders
under Danish law and that the Depositary will not be exercising voting
discretion, either vote as directed by the Board of Directors of the
Company or give a discretionary proxy or power of attorney to vote the
deposited shares in favor of another person designated by the Board of
Directors of the Company.
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 American Depositary Shares
except pursuant to and in accordance with such written instructions from
Holders or as provided above.
55
Holders will have the right to attend shareholder meetings in accordance
with the rules established by the Company but will only have those voting
rights with respect to the Shares as are set out in this Section 4.9.
(16) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger
or consolidation or sale of assets affecting the Company or to which it
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) 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.
(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, Denmark or any other
country, or of any other governmental authority or regulatory authority or
stock exchange, or by reason of any provision, present or future of the
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
56
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 consequential or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely
and shall be protected in acting upon any written notice, request, 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 that the Company and the Depositary and their
respective agents agree to perform their respective obligations
specifically set forth in the Deposit Agreement without negligence or bad
faith. The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided
that any such action or omission is in good faith and in accordance with
the terms of 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.
(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 30th
day after delivery thereof to the Company, or (ii) upon the appointment of
a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement. The Company shall use reasonable efforts to
appoint such successor depositary, and give notice to the Depositary of
such appointment, not more than 90 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 earlier of (i) the 30th
day after delivery thereof to the Depositary, or (ii) upon the appointment
of
57
a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best
efforts to appoint a successor depositary which shall be a bank or trust
company having an office in the Borough of Manhattan, the City of New York.
Every successor depositary shall execute and deliver to its predecessor and
to the Company an instrument in writing accepting its appointment
hereunder, and thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i)
execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in the
Deposit Agreement), (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii)
deliver to such successor a list of the Holders of all outstanding Receipts
and such other information relating to Receipts and Holders thereof as the
successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation
into or with which the Depositary may be merged or consolidated shall be
the successor of the Depositary without the execution or filing of any
document or any further act.
(20) Amendment/Supplement. Subject to the terms and conditions of this Article
(21), 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 the charges of the
Depositary in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right
of Holders or Beneficial Owners, shall not, however, become effective as to
outstanding 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 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
or supplemented thereby. In no event shall any amendment or supplement
impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Receipt at any time
in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such
58
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.
(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 90
days prior to the date fixed in such notice for such termination. If 90
days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of
the Depositary, and in either case a successor depositary shall not have
been appointed and accepted its appointment as provided herein and in the
Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 90 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 or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to
the Holders thereof, and shall not give any further notices or perform any
further acts under the Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to
the conditions and restrictions set forth in the Deposit Agreement,
together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property,
in exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case the charges of the Depositary
for the surrender of a Receipt, any expenses for the account of the Holder
in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time
after the expiration of one year 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
or governmental charges or assessments). Upon the termination of the
Deposit
59
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(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 Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
(23) Certain Rights of the Depositary; Limitations. Subject to the further terms
and provisions of this Article (24), 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 prior to the receipt and
cancellation of ADSs pursuant to Section 2.7 of the Deposit Agreement,
including ADSs which were issued under (i) above but for which Shares may
not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and
receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) accompanied by or subject to a written agreement
whereby the person or entity (the "Applicant") to whom ADSs or Shares are
to be delivered (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 thirty percent (30%) of the ADSs outstanding (without giving effect
to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time
to time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing.
60
Collateral provided pursuant to (b) above, but not earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
61
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without alteration or enlargement
or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian, the
person executing the endorsement must give his/her
full title in such capacity and proper evidence of
authority to act in such capacity, if not on file
with the Depositary, must be forwarded with this
Receipt.
SIGNATURE GUARANTEED
----------------------------
62
Legends
The Receipts issued in respect of Partial Entitlement American Depositary
Shares shall bear the following legend on the face of the Receipt: "This
Receipt evidences American Depositary Shares representing 'partial
entitlement' Common Shares of AKTIESELSKABET DAMPSKIBSSELSKABET TORM and as
such do not entitle the holders thereof to the same per-share entitlement
as other Common Shares (which are "full entitlement" Common Shares) issued
and outstanding at such time. The American Depositary Shares represented by
this Receipt shall entitle holders to distributions and entitlements
identical to other American Depositary Shares when the Common Shares
represented by such American Depositary Shares become "full entitlement"
Common Shares.
63
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-------------------------------------- ------------------------------- -------------------------------
Service Rate By Whom Paid
-------------------------------------- ------------------------------- -------------------------------
(1) Issuance of ADSs upon Up to $5.00 per 100 ADSs (or Person for whom deposits are
deposit of Shares fraction thereof) issued made or party receiving ADSs
(excluding issuances
contemplated by
paragraphs (3)(b) and (5)
below).
-------------------------------------- ------------------------------- -------------------------------
-------------------------------------- ------------------------------- -------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or
Securities, property and fraction thereof) surrendered. making withdrawal.
cash against surrender of ADSs.
-------------------------------------- ------------------------------- -------------------------------
-------------------------------------- ------------------------------- -------------------------------
(3) Distribution of (a) cash No fee, so long as prohibited Person to whom distribution
dividend or (b) ADSs by the exchange upon which is made.
pursuant to stock the ADSs are listed.
dividends (or other free
distribution of stock).
-------------------------------------- ------------------------------- -------------------------------
-------------------------------------- ------------------------------- -------------------------------
(4) Distribution of cash Up to $0.02 per 100 ADSs held. Person to whom distribution
proceeds (i.e. upon sale is made.
of rights and other
entitlements).
-------------------------------------- ------------------------------- -------------------------------
-------------------------------------- ------------------------------- -------------------------------
(5) Distribution of ADSs Up to $5.00 per 100 ADSs Person to whom distribution
pursuant to exercise of issued. is made.
rights.
-------------------------------------- ------------------------------- -------------------------------
-------------------------------------- ------------------------------- -------------------------------
64
II. Charges Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities 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 and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners of
ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
65
Table of Contents
Page
----
ARTICLE I DEFINITIONS.......................................................2
SECTION 1.1 "Affiliate"..................................................2
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)"..................3
SECTION 1.3 "ADS Record Date"............................................3
SECTION 1.4 "Balance Certificate"........................................3
SECTION 1.5 "Beneficial Owner"...........................................3
SECTION 1.6 "Business Day"...............................................3
SECTION 1.7 "Commission".................................................3
SECTION 1.8 "Company"....................................................3
SECTION 1.9 "Custodian"..................................................3
SECTION 1.10 "Deliver" and "Delivery"....................................4
SECTION 1.11 "Deposit Agreement".........................................4
SECTION 1.12 "Depositary"................................................4
SECTION 1.13 "Deposited Securities"......................................4
SECTION 1.14 "Dollars" and "$"...........................................4
SECTION 1.15 "DTC".......................................................4
SECTION 1.16 "DTC Participant"...........................................4
SECTION 1.17 "Exchange Act"..............................................4
SECTION 1.18 "Foreign Currency"..........................................4
SECTION 1.19 "Foreign Registrar".........................................5
SECTION 1.20 "Holder"....................................................5
SECTION 1.21 "Indemnified Person" and "Indemnifying Person"..............5
SECTION 1.22 "Kroner" and "Dkk"..........................................5
SECTION 1.23 "Pre-Release"...............................................5
SECTION 1.24 "Principal Office"..........................................5
SECTION 1.25 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)".5
SECTION 1.26 "Registrar".................................................5
SECTION 1.27 "Restricted Securities".....................................6
SECTION 1.28 "Securities Act"............................................6
SECTION 1.29 "Shares"....................................................6
SECTION 1.30 "United States" or "U.S."...................................6
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.........7
SECTION 2.1 Appointment of Depositary......................................7
SECTION 2.2 Form and Transferability of Receipts...........................7
SECTION 2.3 Deposit with Custodian.........................................9
SECTION 2.4 Registration of Shares........................................10
SECTION 2.5 Execution and Delivery of Receipts............................10
SECTION 2.6 Transfer of Receipts; Combination and Split-up of Receipts....11
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SECTION 2.7 Surrender of Receipts and Withdrawal of Deposited Securities..12
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc...............13
SECTION 2.9 Lost Receipts, etc............................................14
SECTION 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records........................................14
SECTION 2.11 Partial Entitlement ADSs......................................15
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS.15
SECTION 3.1 Proofs, Certificates and Other Information.....................5
SECTION 3.2 Liability for Taxes and Other Charges..........................6
SECTION 3.3 Representations and Warranties on Deposit of Shares............7
SECTION 3.4 Compliance with Information Requests...........................7
ARTICLE IV THE DEPOSITED SECURITIES...........................................7
SECTION 4.1 Cash Distributions.............................................7
SECTION 4.2 Distribution in Shares.........................................8
SECTION 4.3 Elective Distributions in Cash or Shares.......................9
SECTION 4.4 Distribution of Rights to Purchase Shares......................9
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares...............................................21
SECTION 4.6 Distributions with Respect to Deposited Securities in
Bearer Form...................................................22
SECTION 4.7 Conversion of Foreign Currency................................22
SECTION 4.8 Fixing of Record Date.........................................23
SECTION 4.9 Voting of Deposited Securities................................24
SECTION 4.10 Changes Affecting Deposited Securities........................25
SECTION 4.11 Available Information.........................................25
SECTION 4.12 Reports.......................................................26
SECTION 4.13 List of Holders...............................................26
SECTION 4.14 Taxation......................................................26
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY......................27
SECTION 5.1 Maintenance of Office and Transfer Books by the
Registrar................................................27
SECTION 5.2 Exoneration...................................................28
SECTION 5.3 Standard of Care..............................................29
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary..........................................29
SECTION 5.5 The Custodian.................................................30
SECTION 5.6 Notices and Reports...........................................31
SECTION 5.7 Issuance of Additional Shares, ADSs etc.......................32
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SECTION 5.8 Indemnification...............................................33
SECTION 5.9 Fees and Charges of Depositary................................34
SECTION 5.10 Pre-Release..................................................34
SECTION 5.11 Restricted Securities Owners.................................35
ARTICLE VI AMENDMENT AND TERMINATION.........................................35
SECTION 6.1 Amendment/Supplement..........................................35
SECTION 6.2 Termination...................................................36
ARTICLE VII MISCELLANEOUS....................................................37
SECTION 7.1 Counterparts..................................................37
SECTION 7.2 No Third-Party Beneficiaries..................................37
SECTION 7.3 Severability..................................................38
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect......38
SECTION 7.5 Notices.......................................................38
SECTION 7.6 Governing Law and Jurisdiction................................39
SECTION 7.7 Assignment....................................................40
SECTION 7.8 Compliance with U.S. Securities Laws..........................40
SECTION 7.9 Titles........................................................40
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